NICK EICHER, HOST: It’s Wednesday, the 5th of September, 2018.
Glad to have you along for today’s edition of The World and Everything in It. Good morning, I’m Nick Eicher.
MARY REICHARD, HOST: And I’m Mary Reichard. It’s time now for Washington Wednesday.
Later this morning Supreme Court nominee Judge Brett Kavanaugh will again take the hot seat in the Senate Judiciary Committee.
President Trump announced his nominee to replace retiring Justice Anthony Kennedy back on July 9th.
The very next day, Senate Minority Leader Chuck Schumer said this:
SCHUMER: I will oppose him with everything I’ve got.
Turns out, he wasn’t kidding.
Yesterday, the schedule called for senators to make their opening statements in the days-long confirmation hearing. But Chairman Chuck Grassley had barely called the hearing to order when it slid off the rails.
GRASSLEY: I welcome everyone to this confirmation hearing on the nomination of Brett Kavanaugh.
HARRIS: Mr. Chairman, Mr. Chairman.
GRASSLEY: …to serve as associate justice of the Supreme Court of the United States.
HARRIS: Mr. Chairman I’d like to be recognized for a question before we proceed.
GRASSLEY: Regular order.
HARRIS: Mr. Chairman, I’d like to be recognized to ask a question before we proceed. The committee received just last night less than 15 hours ago 42,000 pages of documents that we have not had an opportunity to review, or read, or analyze. (Harris interrupts….)
GRASSLEY: You are out of order. I’ll proceed.
HARRIS: We cannot possibly move forward, Mr. Chairman…[cross-talking]
GRASSLEY: I extend a very warm welcome to Judge Kavanaugh..
HARRIS: We have not been given an opportunity [cross-talking]
KLOBUCHAR: Mr. Chairman, I agree with my colleague Senator Harris, Mr. Chairman we received 42,000 documents last night and I believe this hearing should be postponed.
GRASSLEY: (continues talking)
BLUMENTHAL: Mr. Chairman, if we cannot be recognized, I move to adjourn… (crowd erupts)… Mr. Chairman I move to adjourn. We’ve been denied real access to the documents we need which turns this hearing into a mockery and a charade of our norms.
GRASSLEY: Well…OK. (Protester shouts “this is a travesty of justice…”)
California Senator Kamala Harris was first to interrupt, followed quickly by Minnesota’s Amy Klobuchar. Then Senator Richard Blumenthal of Connecticut moved to adjourn, saying the hearing was premature without access to all relevant documents. Democrats pointed to a Monday night release of thousands of pages they hadn’t been able to review.
The constant interruptions lasted almost 90 minutes. Grassley—in his 15th Supreme Court confirmation hearing—allowed the dissenters to speak. Eventually, he explained why.
GRASSLEY: (If I could just respond to that…) You can respond, but just a minute. If people wonder why the chair is so patient through this whole process, I have found that it takes longer to argue why you shouldn’t do anything than let people argue why they, why… So, if people’s got something to say, this chairman’s gonna let ‘em say it. But it gets pretty boring to hear the same thing all the time. Senator Booker, make it quick. Please.
Democrats accused Republicans of hiding millions of documents from Kavanaugh’s long political career. In particular, Democrats want documents from Kavanaugh’s stint as White House staff secretary for George W. Bush.
But Republicans said those contain sensitive executive branch information, not judicial opinions. Grassley said Kavanaugh has produced more documents than the last five Supreme Court nominees combined.
Texas Senator Ted Cruz expressed what he saw was really going on here.
CRUZ: We’ve heard a lot this morning about documents. There’s an old saying for trial lawyers. If you have the facts, pound the facts. If you have the law, pound the law. If you don’t have neither, pound the table. We’re seeing a lot of table pounding this morning. The Democrats are focused on procedural issues because they don’t have substantive points strong enough to derail this nomination.
Blumenthal and others urged Kavanaugh himself to release the documents—or be forever tainted.
BLUMENTHAL: There’ll always be an asterisk after your name—appointed by a president named as an unindicted co-conspirator after the vast majority of documents relating to the most instructive period of his life concealed.
Coordinated protestors also punctuated the hearing with their own outbursts. Capitol Police reported 70 arrests.
Almost eight hours into the proceeding, Kavanaugh was formally introduced. Former Secretary of State Condoleezza Rice and Republican Senator Rob Portman spoke in turn.
Then came former assistant to the Solicitor General Lisa Blatt. She’s argued more cases before the Supreme Court than any woman in history.
BLATT: I am also a liberal Democrat and an unapologetic defender of a woman’s right to choose. My hero is Justice Ruth Bader Ginsburg, for whom I had the great fortune of serving as a law clerk. I proudly voted for Hillary Clinton, I voted for Barack Obama twice and yet I’m here today to introduce Judge Kavanaugh and to urge the Senate to confirm him as the next associate justice of the Supreme Court. Judge Kavanaugh is the best choice that liberals could reasonably hope for in these circumstances.
Finally, the nominee himself had a few moments to introduce himself. His remarks were an expanded version of what he said the night of his nomination. He emphasized his biographical story, his family, and the importance of his Catholic faith.
Kavanaugh drew a contrast between the partisan circus he’d witnessed all day and the role he would play as a justice.
KAVANAUGH: The Supreme Court must never, never be viewed as a partisan institution. The justices on the Supreme Court do not sit on opposite sides of an aisle…If confirmed to the Supreme Court I would be part of a team of nine committed to deciding cases according to the Constitution.
And with that, the chairman closed the books on the first day:
GRASSLEY: …crack at this strong judge. (gavel) Meeting adjourned.
Here to discuss Day 1 of the Kavanaugh hearing is Justin Driver. He’s a professor of law at the University of Chicago.
Professor, it was this very Supreme Court seat that Judge Robert Bork was once nominated to fill. That confirmation fight 31 years ago proved to be the moment when Supreme Court vacancies became much more politicized than they had been before. Was Day 1 of the Kavanaugh hearing reminiscent of the Bork battle?
JUSTIN DRIVER, GUEST: The scene that unfolded at the opening of Kavanaugh’s confirmation hearing was unlike any that I’ve ever witnessed. I think that this is quite distinct from what happened to Judge Bork in the sense that emotions are running incredibly high over the Supreme Court ever since the Republican Senate declined to give Judge Merrick Garland a hearing for his nomination to the Supreme Court. So, some of that came to the floor with respect to Judge Gorsuch’s nomination to the Supreme Court, but I think that Judge Kavanaugh and his replacing Justice Kennedy rather than a far-right person like Justice Scalia has brought those issues even more to the floor.
REICHARD: Senator Ted Cruz brought up that very subject in his opening statement. He said yesterday was really about the 2016 election and Democrats being mad that Donald Trump is in the White House.
DRIVER: Well, I think there’s no doubt that is part of the concern, but I also think there are other dynamics that are at work here. Indeed, as I understand it, Senator Chuck Grassley recommended against nominating Judge Kavanaugh precisely because his paper trail is so long. And President Trump decided to reject that advice, and so we are seeing a great deal of frustration on the part of Democrats with the enormous amount of documents that materialized at the eleventh hour. And I do think there are important procedural objections here that have nothing whatsoever to do with the 2016 election.
REICHARD: NBC News reported that the interruptions were a coordinated strategy cooked up over the weekend. And then we had all the protestors shouting in the audience. What do those tactics tell us?
DRIVER: I think that the protests are attributable to an enormous sense of frustration and I suspect if you were to talk to the protesters, they would say that it’s true, that they’re not following decorum, but that they are responding in kind to the way that the Senate proceeded with respect to Judge Garland’s nomination. And so many people would say it’s not legitimate to turn back the clock to the 2016 election, but instead what preceded the 2016 election in the way that the clock was run out on Judge Garland’s nomination. And many people would say this is an effort to try to run out the clock until the mid-terms in November. I think it’s unlikely that that’s going to succeed, but I think there’s a strong sense among many people on the left that these are not normal times in which we are living and that it’s important to underscore that in any way possible.
REICHARD: And then finally I want to ask you, putting aside politics, putting aside whatever happened in the 2016 election—good, bad, or indifferent—just from a purely law point of view, a law professor answer to this, what are these confirmation hearings supposed to be about?
DRIVER: Hmm. (chuckles) That’s a really terrific question. At one cut, these confirmation hearings are supposed to be about whether the person is qualified to sit in the seat. Though surely many people would believe that it is incoherent to have that inquiry in a vacuum and one would need to contemplate what the vision of law that person would articulate in their written opinions. And so Judge Bork was famously undone by Senator Ted Kennedy’s comments that he made on the floor of the Senate immediately after the nomination, but also during his confirmation hearings, he didn’t acquit himself all that well. And it’s worth noting that sometimes a friendly question can elicit an unkind answer. That is to say, Judge Bork was asked why he wanted to be on the Supreme Court by a supporter. And his answer was, “Because I think it would be an intellectual feast.” And that was seen as being insufficiently connected to the way that law impact ordinary people’s lives.
REICHARD: Justin Driver is professor of law at the University of Chicago and his new book The Schoolhouse Gate, published on Tuesday, about public school students and the law.
DRIVER: Thank you so much, Mary. It’s been a pleasure chatting with you.