“The consideration of Brett Kavanaugh may represent an inflection point after which progressives may start to wake up to the importance of the judiciary as a branch of government,” Fallon told me. “It would just be a great tragedy if that comes only after a Kavanaugh-type judge is confirmed.”
Under pressure from the left, Democrats on the Judiciary Committee reportedly considered walking out of the first day of Kavanaugh’s hearing on Tuesday, which was reserved for opening statements. They stayed in the room, but mere seconds after Chairman Chuck Grassley opened the hearing, Harris interrupted to call for its postponement so Democrats could have more time to read thousands of documents that had been given to them just hours earlier. Several other Democrats joined in, creating—along with dozens of citizen protesters—a cacophony of interruptions that frustrated Republicans but did not stop the hearing.
The precedent that Democrats want Brett Kavanaugh to break
On Wednesday, questioning of Kavanaugh proceeded largely as expected. Adhering to what he called “nominee precedent,” the judge offered little inkling of how he would rule on key cases and dodged most inquiries related to Trump or his personal policy preferences. “My personal opinion is not relevant to how I decide cases,” he said early on. “I have no agenda in any direction—I’m just a judge,” Kavanaugh added later, adopting a tone of judicial humility made famous by Chief Justice John Roberts during his confirmation hearing, in 2005.
Kavanaugh repeatedly called Roe v. Wade “an important precedent of the Supreme Court that’s been affirmed many times.” But he predictably frustrated Democrats seeking an absolute commitment that he would not vote to overturn it.
By Thursday morning, that frustration—years in the making—had apparently boiled over. By the time the hearing reconvened for a second and final day of questioning, the Times had obtained one of those emails marked “committee confidential.”
Staffers in the Bush White House were discussing an op-ed in 2003 from an anti-abortion writer making the case for the confirmation of two conservative judicial nominees. Kavanaugh, then the staff secretary, chimed in to dispute an assertion that Roe v. Wade was “widely understood accepted … as the settled law of the land.” On the contrary, 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.”
Democrats immediately seized on the document as evidence that Kavanaugh’s stated respect for the precedent of Roe belied his intention to throw it out. Within an hour, Booker and Hirono had released more emails in which Kavanaugh had criticized antidiscrimination policies in Bush’s Department of Transportation as “naked racial set-asides.”
“I’m knowingly violating the rules,” Booker said.
In response, Senator John Cornyn of Texas, the chamber’s second-ranking Republican, called his move to release confidential emails “irresponsible and conduct unbecoming a senator.”
On Twitter, the same progressives who had bemoaned the Democrats’ earlier deference rejoiced. They can only hope that what they fear isn’t true—that their party’s willingness for a bare-knuckled fight for control of the Supreme Court is two years too late.