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The Senate Shreds Its Norms

Congress and the president are prepared to do whatever it takes to shape the judiciary for decades to come.

Brett Kavanaugh
Chris Wattie / Reuters

Thursday morning brought drama to the Senate Judiciary Committee. While the Supreme Court nominee Brett Kavanaugh sat silently, Democrats and Republicans on the committee clashed, exchanging some very personal remarks and attacks, over the process being used for documents from Kavanaugh’s time in the George W. Bush White House. At least one of those documents involved Kavanaugh’s writings and opinions about “racial profiling”—a particular document, in this case, designated as “committee confidential,” meaning not to be released or specifically discussed in public, including in questions to the nominee. On this one, the Democrat Cory Booker said he would defy the majority and release it publicly, even if the Republicans moved to expel him from the Senate.

In an “I am Spartacus” moment, other Democrats, including Dick Durbin, said they would join with Booker, and they almost dared the Republicans, whose point man in this case was Deputy Majority Leader John Cornyn, to go ahead and try.

The level of acrimony here was, well, unusual. We have had highly charged Supreme Court nominations before, including those of Robert Bork and Clarence Thomas; before that, the Richard Nixon nominees Clement Haynsworth and G. Harrold Carswell; and the Lyndon B. Johnson nominee Abe Fortas, who was subject to the only filibuster in history on a Supreme Court nominee. But in the cases of Bork and Thomas, as well as those of nominees such as Elena Kagan and Sonia Sotomayor, the ideological and partisan division, which at times spilled over into over-the-top rhetoric, was managed through a fundamentally cooperative relationship between the chair and the ranking minority member on the committee, even when they disagreed deeply and passionately. That includes the case of the first Donald Trump nominee, Neil Gorsuch. Of course, there was no direct committee acrimony on Barack Obama’s nomination of Merrick Garland—because there was no process. Majority Leader Mitch McConnell refused to meet with Garland, much less hold a hearing, and no Republican in the Senate objected to this unique breakdown in norms.

The Kavanaugh nomination started out in a very different fashion than any of the previous confirmation processes. The Kagan nomination is the most relevant precedent, since she held high positions in a White House, and there were tens of thousands of documents, including emails and memos relating to that service. In that case, the chair and the ranking member of the committee, working with the National Archives under the framework of the Presidential Records Act, set up guidelines and worked together to determine which of her documents would be withheld or made “committee confidential.” They worked in concert with a representative of President Bill Clinton, Bruce Lindsey. Here is how Politico’s Josh Gerstein described the process at the time:

The National Archives has announced that about 46,500 pages of documents from Supreme Court nominee Elena Kagan’s four years of service in the Clinton White House will go online at 1 p.m. E.T. Friday, providing a fresh trove of information for Kagan’s supporters and opponents to pore through in search of ammunition for her confirmation hearings set to start later this month.

White House counsel Bob Bauer indicated in a letter last month that Kagan’s work as a lawyer and policy adviser for President Bill Clinton generated about 160,000 pages of material, including 80,000 pages of paper documents and 79,000 pages of e-mails sent or received.

At least some of the e-mails will be part of Friday’s release, the agency wrote in an e-mail to POLITICO Friday morning.

White House officials have said President Barack Obama has no plans to invoke executive privilege and withhold any of the documents, though some related to national security issues or containing private information about individuals may be withheld in accordance with past practice.

However, the normal procedures for release of presidential records also give Clinton’s representative, Bruce Lindsey, the right to review all the records and assert any objection Clinton might have to the release. That prospect is considered unlikely but a spokesman for Clinton has declined repeated requests for comment on the issue.

There were no objections, and any documents flagged by Lindsey were then discussed by the leaders on the committee in a bipartisan way. In the end, there were no significant controversies.

In the Kavanaugh case, the National Archives notified the Senate that it would not be able to complete its review of his documents until the beginning of October. The Senate Republicans ignored that message and scheduled the confirmation hearing for the first week in September. The documents were not vetted by the National Archives with participation by a presidential representative, but just by President Bush’s representative, Bill Burck. And President Trump, already being sued for repeated failures to abide by the Presidential Records Act, unilaterally declared 102,000 pages off limits.

The behavior of the president aside, the acrimony on the committee on Thursday was fundamentally over those pages that have been released to the committee but marked “committee confidential,” not via an agreement between Chairman Chuck Grassley and Ranking Democrat Dianne Feinstein, or via their staffs, but by Grassley unilaterally. Before Booker said he would defy the confidentiality designation, Democrats on the committee had made clear through hints and more indirect questions that there were several documents that were themselves important and significant that were held back by the designation.

The united front by Democrats, and the possibility that there would be not only committee-confidential documents released publicly in defiance of the chairman but an open invitation by Democrats to have expulsion votes taken on their actions, caused Grassley to pause—after all, this could turn a highly charged and controversial Supreme Court confirmation into a full-blown circus and crisis in the Senate, and raise the stakes of the Kavanaugh vote even higher. But it turned out the drama wasn’t quite what it seemed. Republicans later pointed out that Democrats had been notified at 4 a.m. on Thursday that the particular documents in question had already been cleared; Booker, for his part, argued that reading from them at the hearing the night before placed him in violation of the rules.

So, for now, crisis averted. But the morning’s drama simply underscores the deterioration of comity and the destruction of norms that has hit the Senate in the past dozen years. There is no question that the larger political environment, including the permanent campaign and the morphing of polarization into tribalism, has contributed to shaping the behavior of leaders on both sides. Even if only a third of the Senate is up for reelection every two years, every senator now raises campaign money all the time, including raising money for the team. They recognize that each election could potentially result in a change of majority control, with enormous implications for the policies the Senate could enact, the judges it could confirm, and the executive-branch nominees on whom it would vote. So politics infuses process all year round.

The dynamic has affected substantive legislation. Both Democratic and Republican majorities have turned a once open and robust amendment process on the floor into a much more constrained one, mostly to avoid “gotcha” amendments designed more to embarrass the majority politically than to offer constructive change. During the Obama years, the Republican minority used filibusters in ways never contemplated in the past, applying them to the widest range of bills, including broadly popular ones, as a regularized weapon of mass obstruction. And in the current Congress, McConnell blew up the regular order, largely bypassing the committee structure and working on a purely partisan basis to craft and bring to up-or-down votes the repeal of Obamacare and the massive tax cut, the two major legislative initiatives so far in the Trump era. It was because of his objections to that abuse of process that the late John McCain flashed his famous thumbs-down to block the health-care repeal.

But it is in the area of judges that the norms have been shredded the most. In an extended era of closely divided Senates and sharply polarized and tribalized politics, judgeships have taken on heightened importance. Congressional majorities and presidential terms are transitory; judges are there for decades after the presidents who nominated them and the Senate majorities who confirmed them are gone. And as the political process has become more sharply partisan, judicial dynamics have as well—on many significant and controversial cases the Supreme Court divides 5–4, and the votes of both the five and the four are almost always predictable, based on whether the president who nominated them was a Republican or a Democrat.

With Congress paralyzed by divided politics and few opportunities to pass major bills, many important areas of policy are now shaped significantly by judges. And whether it is questions involving corporate and union power, workers’ rights more generally, voting rights, campaign finance, the rights and roles of women, or the nature and limits of executive power and regulations, policy outcomes now depend on which judges are involved far more often than in the past. And the political parties, especially but not only the Republicans, are far more careful than in the past to make sure that the judges their presidents nominate will not deviate significantly from orthodoxy. Nowhere was this more overt than when Trump pledged that any nominee he would choose for the Supreme Court would have to first pass muster with the Federalist Society.

In 2005 and 2006, Democrats filibustered a number of extremely conservative Bush nominees for appeals courts, leading to a threat by then–Majority Leader Bill Frist to blow up the filibuster rule for these judges; a bipartisan “Gang of 14” averted that action with a compromise. McConnell used the filibuster much more broadly when Obama was president, to delay or block many judges just to keep the slots open for the next GOP president. He took the tactic to a new and unprecedented level when he told then–Majority Leader Harry Reid that he and his Republican colleagues would use the filibuster to block any nominees for the three vacancies on the most important lower court, the D.C. Circuit, which hears the cases involving executive power and separation of powers, no matter their qualifications or moderation in views. His goal was to preserve a conservative majority on the court at any cost.

Reid then took the step that Frist had threatened, lowering the threshold for cloture on lower-court and executive nominations from 60 to 50. Reid was harshly criticized by many pundits and journalists for his action, but if he had not done so, the D.C. Circuit would have hamstrung Obama through much of his presidency, and the vacancies would have been filled by Trump, cementing a conservative majority for decades to come. It then became predictable that McConnell, now leading the Senate majority, would extend the change to the Supreme Court. But anybody who had watched McConnell over the years knew that McConnell would have done so even if Reid had not acted first.

Indeed, the Democrats on the Senate Judiciary Committee, under Chairman Patrick Leahy, despite pressure from liberal groups and some abuses by Republican senators, kept the tradition of the “blue slip,” ensuring that the senators from states where lower-court judges would serve were consulted by the president and could block confirmation by failing to file blue slips with the chair. As The Washington Post noted last month:

Under Obama, Republicans used the blue slip prerogative to veto nominees, according to Russell Wheeler, visiting fellow at the Brookings Institution’s Governance Studies Program. Trump, Wheeler said, is paying no attention to the home-state Democratic senators’ opinions.

With a slew of vacancies for appeals-court and district-court positions, in large part because of McConnell’s intransigence, and with the lower threshold for confirmation, Trump has confirmed more judges in his first two years than any of his predecessors—most of them young enough to serve for a very long time. Republicans in Congress have tolerated and will tolerate almost any behavior from Trump and his Cabinet to accomplish the goal of shaping the judiciary ideologically for decades after voters have turned them out of power.

There is no judicial prize greater than a seat on the Supreme Court. So it may be no surprise that McConnell would block Merrick Garland—a judge once praised passionately by Republicans such as Orrin Hatch for his judiciousness and moderation—and then make sure that Grassley and the Judiciary Committee would expedite the confirmation of Kavanaugh by tilting the process to rush the vote. The temporary cease-fire achieved on Thursday after the fireworks, sadly, does not signal any respite in this dynamic. The fundamental deterioration of norms in a body that once prided itself on debate, deliberation, and the ability to bridge societal and partisan divides will not get better soon.