The confirmation hearing for Judge Brett Kavanaugh on Tuesday opened like a brawl, with screaming protesters being arrested and dragged out of the Senate Judiciary Committee’s room, Democrats lobbing procedural motions to derail the hearing and Republicans bemoaning the circus as “mob rule.”
A brawl, however, is what many Democrats appear to want in the process of vetting Kavanaugh, a federal judge on the D.C. Circuit Court of Appeals who is President Donald Trump’s second nominee to the U.S. Supreme Court in as many years.
In the era of Trump, Senate Democrats have been frequently chastised by the party’s progressive base for perceived failures in resisting the president and Sen. Mitch McConnell’s GOP majority. But grassroots groups have kept the pressure on — even after a draining confirmation battle over now-Justice Neil Gorsuch last year — and have organized in opposition to Kavanaugh since Trump nominated him as a replacement to the retiring Anthony Kennedy, long the high court’s wildcard.
That pressure seems to have drawn a response: Tuesday’s initial hearing was literally seconds old when Democrats began interrupting Judiciary Chairman Chuck Grassley with complaints and motions to adjourn.
Minnesota’s two DFL senators, Amy Klobuchar and Tina Smith, have both raised criticisms of Kavanaugh’s nomination. As a member of the Judiciary panel, Klobuchar has a particularly important role to play. Her opening statement on Tuesday focused on a common refrain from the Democratic opposition: that the process of Kavanaugh’s nomination — and the political environment that serves at its backdrop — are “not normal.”
With the balance of the Supreme Court on the line, Democrats face tough odds to block Kavanaugh’s nomination, thanks to Senate math and difficult election-year politics. But they are not backing down, at least, from an opportunity to raise their objections and show their base a willingness to fight with the elections looming two months away, and control of the U.S. Senate on the line.
The atmosphere around Kavanaugh’s confirmation had already been heated before anyone stepped into the hearing room in the Hart Building on Tuesday: Democrats had been fighting Republicans in the majority and in the White House to release some 100,000 pages of documents related to the judge’s time as a lawyer in the George W. Bush White House.
Democrats argued that these documents would provide important information about the would-be Supreme Court justice; Republicans countered that they had issued 400,000 pages of Kavanaugh documents already, offering up more than enough material.
The Trump White House declined to release the Bush-era documents, saying that they were protected by executive privilege because they detailed sensitive communications around President Bush and his staff.
The night before the hearing, however, the Bush presidential library released 42,000 pages of documents related to Kavanaugh’s time in the White House — prompting howls from Democrats and motions to postpone his hearing until they had time to review the new information.
But the hearing went forward, featuring stemwinding statements from nationally prominent Democrats, like New Jersey Sen. Cory Booker. Klobuchar’s 11-minute speech was an indictment of not only the abnormality of Kavanaugh’s own campaign for the high court, but of Trump’s Washington and what she sees as his corrosive effect on government institutions and rule of law.
“It has all the trappings, all of us up here, all the cameras out there, the statements, the questions, all of it looks normal,” Klobuchar said. “But this is not a normal confirmation hearing.”
Hitting not only on procedural concerns regarding Kavanaugh’s paper trail — “a good judge would not decide a case with only 7 percent of the key documents,” she said — Klobuchar also went after his vision of an expansive chief executive, a point Democrats have raised at a moment when questions of obstruction of justice swirl around President Trump.
“Our democracy is on trial,” Klobuchar said. “Our nation’s highest court must serve as a ballast in these turbulent times.”
Klobuchar will question Kavanaugh herself on Wednesday, but her opener drew attention: The liberal comedian Samantha Bee tweeted a clip of mics dropping in response to Klobuchar; GOP operatives joked it was the best 2020 Democratic primary audition the committee saw that day.
Smith, who does not serve on the Judiciary panel, has already announced her opposition to Trump’s pick; her social media accounts are already liberally deploying the hashtag #StopKavanaugh.
Smith told MinnPost that Kavanaugh would be “terrible for issues that matter to Minnesotans,” listing clean air, water, voting rights, health care, and executive power. The hearing so far, she said, “revealed, I think, how strongly Democrats feel about the importance of being able to do our constitutional duty to provide advice and consent,” adding that Klobuchar and her fellow senators “raised important points about the unprecedented shortcomings in this process.”
An uphill climb
Shortcomings aside, Republicans’ strategy for getting Kavanaugh through the Senate is likely to pay off, thanks to the partisan makeup of the chamber: Republicans have a two-seat advantage, and Democrats would need three Republicans to join them in voting no — if the opposition party voted as a bloc. (That’s no guarantee: Three Democrats up for re-election in red states this fall joined Republicans to approve Gorsuch’s nomination last year, and one or more may cross party lines again.)
Democrats believe that a pair of moderate Republican senators, Lisa Murkowski of Alaska and Susan Collins of Maine, might be persuaded to vote no. But even if both of them do, another no vote from the GOP column would be required.
“I know this is an uphill battle,” Smith said. “The rules of the Senate and the loss of the filibuster for Supreme Court confirmation all makes this a real uphill battle.” She added, however, that “I don’t think anyone knows what’s going to happen” as the hearings move forward.
A range of progressive activist groups have been working to mobilize opposition to Kavanaugh and keep pressure on Democrats to stand against his nomination to the court. In Minnesota and across the country, progressives participated in a “day of action” on Aug. 26 to protest the judge.
Erica Mauter, a Minneapolis native who is a fellow at the liberal group MoveOn, says the group is encouraging members to let their senators know early and often that there is broad opposition to Kavanaugh.
“That allows senators to know with that strong constituent support, they can put up a fuss over this nomination,” she says. “For Tina Smith and Amy Klobuchar, if they’re hearing from Minnesotans that we agree they should oppose the nomination of Brett Kavanaugh, that helps them be more vocal in opposing.”
Some progressive activists monitoring how senators navigate Kavanaugh have had good things to say, generally, about what Senate Democrats are doing — which has not been a given in the Trump era. In some big political fights, like the January government shutdown over immigration, the party base has felt let down by compromise-oriented lawmakers such as Klobuchar.
Mauter says she was not shocked that Klobuchar was not one of the first Democrats out of the gate to criticize Kavanaugh, but said the senator is approaching this critical event in her “own Amy Klobuchar way.”
“If there’s one thing I think we can trust and expect from Sen. Klobuchar, it’s that she has worked very hard in her tenure in the Senate to build relationships that allow her to be effective,” Mauter said, saying that quality makes her formidable in a high-profile hearing room full of her colleagues.
To some progressive activists, like Heidi Hess, a senior campaign manager at the group CREDO Action, Democrats’ hearing speeches and maneuvers were not enough. She and other progressives believe Democrats should stop showing so much deference to the decorum of the Senate and put maximum pressure on Republicans in a confirmation with monumental implications on a number of issues.
“It doesn’t feel to us and to many progressives that they’re really taking this as a fight of those kinds of stakes,” Hess said of Senate Democrats, “and figuring out how to be champions of the people that Kavanaugh’s appointment really threatens.”
Hess had hoped that Senate Minority Leader Chuck Schumer and influential Democrats would put pressure on the 49-member caucus to unanimously oppose Kavanaugh, so that public scrutiny would fall solely on the handful of Republicans on the fence.
Strong statements like Klobuchar’s are fine, Hess said, but they should be the bare minimum expected of Democrats. “There’s something about the way Democrats have taken up the fight since the beginning,” she said, “that doesn’t seem to have the urgency we feel is needed.”