Senate confirmation hearings for Donald Trump’s conservative nominee for the supreme court once again descended into chaos on Thursday, as Democrats insisted documents exposing Brett Kavanaugh’s opinions on contentious issues were being withheld from the public.
Just minutes before the judiciary committee gaveled into session for the third day of hearings, the New York Times printed leaked confidential documents from Kavanaugh’s stint in the George W Bush White House, in which he questioned whether the Roe v Wade decision on abortion was the “settled law of the land”.
In an email, Kavanaugh blanched at that description of Roe v Wade, the landmark 1973 supreme court decision that effectively legalized abortion in the US. He wrote: “I am not sure that all legal scholars refer to Roe as the settled law of the land at the Supreme Court level since Court can always overrule its precedent, and three current Justices on the Court would do so.”
Kavanaugh later insisted under questioning that Roe v Wade is “important precedent” and insisted that his concern was about the use of the phrase “all legal scholars” which he viewed as too broad.
Even before the story was mentioned inside the hearing room on Thursday, the New Jersey Democrat Cory Booker announced he would leak a confidential document containing Kavanaugh’s thoughts on racial profiling and noted that the potential penalty for doing so could be “ouster from the Senate”. John Cornyn, his Republican counterpart, responded with a dig at Booker, saying that “running for president is no excuse” for leaking information.
Dick Durbin, the number two Democrat in the Senate, immediately spoke in solidarity with Booker. “I completely agree with you. I concur with what you’re doing,” he said. “Let’s jump into the pit together. If there is going to be some retribution against the senator from New Jersey, count me in.” After his statement, Mazie Hirono of Hawaii announced she would release confidential documents as well.
However, Republicans insisted that the documents in question had already been cleared for publication. In a statement, a spokesman for Senator Chuck Grassley, the chair of the committee, said “restrictions were waived before 4am” and “senators were notified of this before speaking began this morning”. It added that Democrats just wanted to “break the rules and make a scene”.
In a statement, Booker did not deny that the documents had already been cleared for release when he made his demand. “Cory and Senate Democrats were able to shame the committee into agreeing to make last night’s documents publicly available, and Cory publicly released those documents as well as other committee confidential documents today,” said Booker’s spokeswoman, Kristin Lynch.
The documents, consisting of emails from Kavanaugh’s time in the Bush White House, were blasted out mid-morning on Thursday. Booker published several emails in which Kavanaugh said that while he favored “race neutral” security measures in the aftermath of the terrorist attacks of 9/11, he said there was an “interim question of what to do before a truly effective and comprehensive race-neutral system is developed and implemented”.
Hirono published an email in which Kavanaugh wrote: “Any program targeting Native Hawaiians as a group is subject to strict scrutiny and of questionable validity under the Constitution.”
Booker later shared other “committee confidential” information throughout the day on Thursday.
The fight focused on information turned over from the George W Bush Library about Kavanaugh’s service in the Bush White House. The documents were labeled “committee confidential” which meant that they could not be made public or discussed in public.
Bill Burck, a lawyer representing Bush, made the determination for which documents would receive that label. Burck also represents the White House counsel, Don McGahn, former White House chief of staff Reince Priebus and former White House strategist Steve Bannon in the Mueller investigation.
The documents leaked to the New York Times also included Kavanaugh dealing with issues such as warrantless surveillance, affirmative action and a controversial appellate court nomination.
Kavanaugh played coy when asked about other issues on Thursday. He refused to weigh in on Trump’s attacks on the judiciary, under questioning from Richard Blumenthal, a Democrat from Connecticut.
When Blumenthal cited Trump’s 2016 attacks on federal judge Gonzalo Curiel over his Mexican-American heritage and tweets where Trump said Justice Ruth Bader Ginsburg’s “mind was shot”, Kavanaugh dodged, saying he did not want to get “within three zip codes of a political debate”. In contrast, Justice Neil Gorsuch called Trump’s attacks on the judiciary “disheartening” and “demoralizing” during his confirmation process.
Kavanaugh also insisted that “I’ve had no inappropriate discussions with anyone” when asked about conversations he may have had about the Mueller investigation. Democrats have long been concerned with how Kavanaugh might rule in potential litigation relating to the Russia investigation if elevated to the supreme court.
