‘Not normal’: How Minnesota’s U.S. senators are approaching a monumental Supreme Court battle

Supreme Court nominee judge Brett Kavanaugh
REUTERS/Chris Wattie
Supreme Court nominee judge Brett Kavanaugh shown during his Senate Judiciary Committee confirmation hearing on Capitol Hill.

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.

‘Not normal’

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.”

Sen. Amy Klobuchar's opening statement
REUTERS/Chris Wattie
Sen. Amy Klobuchar's 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.”
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.”

Comments (35)

  1. Submitted by Curtis Senker on 09/05/2018 - 10:38 am.

    “Not normal” is exactly what Trump was elected for. We are happy to see the Democrats have noticed he is making good our trust.

    We hope for many, many more such epiphanies in the next 6 years. Maybe another SCOTUS pick? Wonderful!

    • Submitted by ian wade on 09/05/2018 - 01:45 pm.

      Translation – “Burning it down to own the libs.”

    • Submitted by Paul Brandon on 09/05/2018 - 02:24 pm.

      Actually……
      He was elected for pie in the sky.
      Certainly not unknown in politics, but I hope that it’s not normal.
      “Work all day, live on hay,
      They’ll be pie in the sky when we die, bye and bye.”
      Ballad of Joe Hill

      • Submitted by Curtis Senker on 09/05/2018 - 06:17 pm.

        If 2 SCOTUS justices, 125 fed appeals court judges, new NAFTA, Iran on their heels, Norko backed down, Billions of repatriated American corporate dollars, the best economy in 20 years is pie in the sky, I’ll have another helping thank you.

        • Submitted by Frank Phelan on 09/06/2018 - 08:16 am.

          Norko backed down??? I’m surprised a Don Trump backer would even bring up Kim today. Kim played Don Trump; he got his summit meeting which legitimized his rule to his people, now he ignores the vague promises he made with Trump. He hasn’t destroyed a single nuke, and don’t hold your breath waiting for him to. Meanwhile, Kim uses the bones of American servicemen as bargaining chips. Please, no more helpings of Norko back down for me.

          Yes, corporations got their repatriation tax dodge, and to what effect? Stock buy backs are way up, which does nothing for the economy other than line the pockets of the wealthy and CEOs with stock options. Meanwhile, wage stagnation continues for non-supervisory (hourly wage) employees, a bi-partisan failure going back 40 years.

          It seems conservatives have short memories when it comes to the economy. They forgot all about the train wreck Bush left Obama. Now they’ve forgotten the economy Don Trump inherited from Obama. Although the roaring stock market that Obama stoked has cooled, down year to date in 2018. No wonder the market related tweets have stopped.

          • Submitted by stephanie snow on 09/09/2018 - 07:16 am.

            Plus inflation is up so even if you did get a bump in pay, gas and many other things are higher and it’s gone.

        • Submitted by Frank Anderson on 09/06/2018 - 05:26 pm.

          With lots of Whipped Cream on the top of that “Great Economy Pie”

  2. Submitted by Pat Brady on 09/05/2018 - 11:22 am.

    Senator Amy knows that these preceedings are rigged from the getgo.
    But the GOP have nothing left but this SCOTUS appointment.
    Meanwhile, over at the WH , the crazy town is self destructing with Trump a total idiot that needs to be ignored in our national interest.

  3. Submitted by Geo. Greene on 09/05/2018 - 11:27 am.

    I’m glad to see this. It’s about time.

    There are still folks on the left who seem to think we shouldn’t have a spine. That we must move right to win, so we don’t offend the “middle” (even though most people on either side agree with us on the issues ). The proof of the pudding is in the eating: if that strategy had worked we would not have been losing for decades to the unhinged people who now control all three branches of government. Even if some do not think being a core-values-Liberal will work, they must acknowledge that being Republican-light has failed miserably.

    Republican-light Democrats “rolls their eyes” at Progressives. Progressives, for their part, don’t seem to get that they can take over the party even more quickly than the Tea Party took the GOP away from relatively saner Republicans.

    I’m hoping all of this is the beginning of a new, more bold and fearless leadership on the left.

  4. Submitted by Ron Gotzman on 09/05/2018 - 11:42 am.

    I was embarrassed by the coordinated collusion among the democrats in the crowd and on the platform during this hearing.

    However, it was refreshing to see some “ginned up” energy from Amy K. I am glad she can at least put up a show when it is time to audition for the “base.” (3rd definition).

    Did you hear the questioning from the Senator from Vermont today…Patrick L.? Wake the poor guy up!

    • Submitted by Bob Petersen on 09/05/2018 - 02:59 pm.

      Don’t forget that Amy is still a politician in an election year. Though she will most likely win, this is something that she will use to say that she is a fighter rather than someone who just plays it safe, not stir the waters, and still be a safe Democrat vote as what her usual MO is. Her actions in the hearings are far more for her than anything else.

    • Submitted by Frank Phelan on 09/07/2018 - 07:07 am.

      Were you even more embarrassed when McConnell et al refused to even give Garland a hearing, much less a vote? They didn’t even meet with him in their offices.

  5. Submitted by Susan Maricle on 09/05/2018 - 11:48 am.

    What would Dayton do?

    When it fell to Mark Dayton to appoint a replacement for Al Franken (boy, do we need him now), I was hoping he would appoint himself. Just to tweak the noses of those who said he was an awful senator. Dayton would give a speech similar to his “How many of you use cop killer bullets?” stemwinder.

    • Submitted by Curtis Senker on 09/06/2018 - 02:16 pm.

      Dayton was an aweful Senator, even by his own standards. He embarrassed himself and the state, and he knows it. I doubt he would agree to serve if asked.

  6. Submitted by RB Holbrook on 09/05/2018 - 01:45 pm.

    Sometimes, the ways things get done are more important than the things that gets done.

    All enduring nations or nation-states have something that binds them together. It may be a belief in divine ordinance. It may be a shared ethnicity. It may be adherence to an ancient, long-remembered tradition (“Elizabeth the Second, by the Grace of God, of the United Kingdom of Great Britain and Northern Ireland and of Her other Realms and Territories Queen, Head of the Commonwealth, Defender of the Faith”). Whatever it is, it is the unifying principle that gives cohesion.

    What does the United States have? In the end, what we have are the norms of our governance. We are a nation founded solely for the purpose of self-governance. The continuation of that purpose relies on all of us following certain norms. Our Constitution sets out the rules our government follows, but in the end, it relies on our continued good faith. It may make things inefficient at times, and the demagogues and their followers among us may rise frequently to change everything, but our system cannot work without those norms.

    Lately, there is a mindset that prefers to see government as a kind of cage match (you can tell from the incredibly original “pass the popcorn” observation that was never very clever). If you want to update the reference, it’s a translation of representative democracy into a reality TV show. Blowing everything up may be good for ratings, and the more immature citizens might appreciate it for its own sake, but it does true violence to the American experiment. We are no longer bound by our shared commitment to an ideal, we are people shoved together by an accident of geography.

    This is not to say that things—and our norms—should never change. Any human institution has within it the potential for improvement. All change is not for the better, and all destruction is not creative. Remember what has made our country work for so long, and honor (and adapt) that.

    As Henry Gibson sang in the movie Nashville, “We must be doing something right to last two hundred years.”

  7. Submitted by Mike Downing on 09/05/2018 - 01:54 pm.

    Yesterday was a clear example of the breakdown in our society and our Congress. I saw childish & disrespectful behavior from the left. I seriously doubt the right will be so childish & disrespectful when Democrats take control of the Senate in the future. Just recall the Judiciary Committee Meetings and votes when Sonia Sotomayor & Elena Kagan were confirmed to today’s farcical proceedings by the left for a highly qualified judge.

    • Submitted by Robert Lilly on 09/05/2018 - 04:19 pm.

      You Lie! Set the bar pretty low for childish and disrespectful behavior. Doesn’t look like it’s going to change anytime soon either.

    • Submitted by ian wade on 09/05/2018 - 04:50 pm.

      Right, Mike. There was absolutely nothing childish and disrespectful about not allowing a sitting president to name a SCOTUS appointment with a year left in his tenure.

    • Submitted by Cameron Parkhurst on 09/05/2018 - 04:58 pm.

      Surely you jest? The tone of the hearings for Kavanaugh were set by the farcical refusal to even hold a hearing for Garland, another well qualified jurist.

    • Submitted by Frank Phelan on 09/05/2018 - 05:36 pm.

      Spare me the sanctimony. McConnell refused to even schedule a hearing for a duly elected President. Stealing a seat on the Supreme Court pales in comparison to what went on yesterday.

    • Submitted by Gail O'Hare on 09/05/2018 - 09:14 pm.

      The rushed process, the document dump just before the beginning of the hearings, the refusal even to hear valid motions? What do you call that, mature and respectful? It was a cynical coup and the bitterness will last a long time. Almost as long as the bitterness over refusing a hearing to Judge Merrick Garland.
      The committee was given ample time to review all of Kagan and Sotomayor’s documents, plenty of time to question and deliberate. They were not nominated by a criminal president seeking to rush through confirmation of a friendly judge who would block efforts to subpoena him in an obstruction of justice investigation.

    • Submitted by James Miller on 09/05/2018 - 09:27 pm.

      Does instructing the entire Republican Senate to vote against almost every bill put forth by a Democrat president qualify as “childish”? (https://www.cbsnews.com/news/senate-gop-pledge-to-block-dems-legislation/)

  8. Submitted by Gail O'Hare on 09/05/2018 - 02:59 pm.

    Credo wants more from the Dems but offers no ideas. What do they want? “Stop showing so much deference” means what, exactly? Kamala Harris led the demands for a postponement by talking over Grassley’s opening preamble; others spoke directly and with barely disguised contempt for the cynical manipulation of the process. What should they have done? Staged a walk-out? a sit-in?
    I agree the shouted interruptions by protesters is counter- productive, but I cannot understand why a writer here says he was embarrassed by “coordinated collusion on the platform.” He must not have watched other hearings in which the GOP has excelled at coordinated collusion.

    Standing together and making points for the American people, for the other senators who will vote, and for the history books seems to me the Democrats’ best strategy. As he watches this unfold, Chief Justice Roberts may choose not to run a court that is held up to ridicule because it was jerry-built by zealots and a president who hasn’t read the constitution.

    • Submitted by Frank Phelan on 09/05/2018 - 05:42 pm.

      Democrats may well be playing the long game. They are finally calling out a hard right nominee for the shop worn “I just call balls and strikes & I respect stare decisis” baloney. Everyone knows SCOTUS is a hand maiden of the nation’s CEOs, and a few more years of the Roberts 5 will only harden that perception.

      Funny how the corporate side gets all the balls and those who Paul Wellstone referred to as the Little Fellers get all the strikes.

  9. Submitted by Connie Sullivan on 09/05/2018 - 05:21 pm.

    I was proud of Amy Klobuchar today: she was the one who discombobulated Brett Kavanaugh by being just as nerdy in her in-the-legal-weeds questions as he was in some of his answers.

    Did you see his face redden as she questioned him? She didn’t shout, but she insisted that he not veer from the question, and even at one point hustled his answer along with an “I know those cases, just give me your response.” One major issue after the other.

    Also: I have criticized Klobuchar for her “Nice Girl” demeanor in the Senate and her bobbing and weaving style when discussing stuff. I would have liked more confrontation, a la Al Franken’s. But,boy! could we see the effects that her way of being a Senator has had: They like her, on both sides of the aisle, they listen to her, she gets along. And she gets things done. She can even have sharp arguments with her GOP colleagues and they still get coexist politely and with apparent friendliness.

    She’s now a totally national-level politician. Way to go, Amy!

  10. Submitted by Joel Stegner on 09/05/2018 - 10:54 pm.

    Do the math. The nomination goes down only with Republican opposition. Our two DFL senators will vote no. Hopefully, tgey will talk to female Republican Senators and have some impact. Had our party had its act together in 2016 and won more elections, we woukd not be in this situation.

  11. Submitted by Steve Titterud on 09/06/2018 - 10:11 am.

    These Democratic Senators, in their attempts to trick or trap a candidate like Kavanaugh, are clearly out of their depth.

    As soon as he effectively addresses the heart of the real issue underlying their questions, they quickly try to stop his answer, interrupting & talking over his voice. If you have a superior argument, or a more substantive point, there is no need to descend to such tactics.

    It seems that Senator Whitehouse would never have imagined that his complaint of a conservative cabal in the court, reigning “every damn time” with 5-4 majorities, have reduced its decision-making to crass politics, weighs equally in all respects against the 4 votes consistently in the minority. If the 5 are playing politics, so are the 4, who also vote together “every damn time.”

    • Submitted by RB Holbrook on 09/06/2018 - 03:04 pm.

      “Clearly out of their depth?” Really? I thought the man looked like a deer caught in the headlights. Obviously, he did not expect to be questioned so hard (“They didn’t do this to Neil!”).

      “As soon as he effectively addresses the heart of the real issue underlying their questions, they quickly try to stop his answer, interrupting & talking over his voice.” Except that he doesn’t get to decide what the “real issue” is. He is supposed to answer questions, not decide what is “underlying” a question.

      I haven’t been able to watch today. Has anyone tried to call him to account for his choreography of the Vince Foster danse macabre? In the pre-Trump era, that set the standard for abhorrent political conduct, and Judge Kavanaugh was its most enthusiastic proponent.

  12. Submitted by joe smith on 09/06/2018 - 03:23 pm.

    Why wouldn’t Kavanaugh be affirmed, he’s more than qualified and it is the President’s prerogative to choose whoever he deems worthy of a great responsibility. Did anybody here, who’s complaining now, complain about Obama appointing Sotomayor? A liberal President appointed a liberal judge, that’s the way it works. I just hope Trump gets to pick another Supreme Court Judge after Kavanaugh. Can’t have enough Judges who interpret the law not try to make the laws.

    • Submitted by Frank Phelan on 09/06/2018 - 04:17 pm.

      “Why wouldn’t Kavanaugh be affirmed, he’s more than qualified and it is the President’s prerogative to choose whoever he deems worthy of a great responsibility. ”

      So why didn’t that standard apply to Garland? Clearly there is another standard at work, and has been since the day Scalia died.

      • Submitted by joe smith on 09/06/2018 - 07:10 pm.

        That was what the 2016 election was for. Everyone knew the next President was going to pick the Scalia replacement, Americans voted and Trump won. Plain and simple. Thanks to Harry Reid, you only need a simple majority to get judges appointed and thanks to the Biden rule a President in his last year shouldn’t be allowed to pick a Supreme Court Justice.
        Funny how those things work out.

        • Submitted by RB Holbrook on 09/07/2018 - 09:42 am.

          There is no such thing as a “Biden rule.” Then-Senator Biden was speaking about a hypothetical possibility–there was no Justice nominated at the time that he said it. Never, in the history of judicial appointments in the US, has the “Biden rule” been applied (is there no reason to apply that role this year, when the make-up of the Senate could change?).

          If, however, you’re going to stick to the Biden rule fairy-tale, you might ask if it’s appropriate for a President under investigation should appoint a Justice. Alternately, ask if that appointee should not promise to recuse himself from cases involving that President, even if that appointee was nominated largely for his view that a sitting President should not have to face a criminal investigation while in office (subject to change, based on the President’s party, of course).

          • Submitted by joe smith on 09/07/2018 - 10:57 am.

            You mean like Bill Clinton appointing Ginsburg while under investigation? Did that bother you then? As far as the Biden rule, hypothetically or not , he stated a President should not fill a void in his last year of his Presidency. He said exactly what happened, let the voters decide through an election who will fill the vacancy. I don’t remember Dems losing their minds over his statements then.
            The voters put in Trump and he picked 2 Justices who he felt were great for the job with a simple majority, thank you Harry Reid!

          • Submitted by RB Holbrook on 09/07/2018 - 11:47 am.

            “You mean like Bill Clinton appointing Ginsburg while under investigation? Did that bother you then? ” Not especially, but then, I don’t think Trump should not be allowed to nominate a Justice (if you’re going to cling to the “Biden rule,” at least be consistent). I object to this nominee, and find it more than coincidental that he decided that a sitting President cannot be investigated while in office, but that has nothing to do with President Trump’s authority to make a nomination. Judge Kavanaugh is a bad candidate.

            “As far as the Biden rule, hypothetically or not , he stated a President should not fill a void in his last year of his Presidency.” He stated his opinion. It was not a “rule.” It has never been a rule. John Marshall was appointed to the Supreme Court after President Adams lost his bid for re-election and was confirmed by the Senate. Ever since, Presidents have appointed justices and judges in the last years of their terms. It was only an issue when the Kenyan usurper did it.

            “He said exactly what happened, let the voters decide through an election who will fill the vacancy.” The voters elected Barack Obama and gave him the power to make judicial appointments through January 20, 2017. The majority of American voters (not just the Electoral College, but the voters) had already decided who should be making that appointment. Of course, there has always been the undercurrent in Republican thinking that President Obama’s election was somehow illegitimate, so that didn’t enter into the discussion

  13. Submitted by stephanie snow on 09/09/2018 - 07:12 am.

    The republicans begin breaking norms when they said they’d obstruct Obama from day one. Then Garland, not even a hearing to bring to a vote. Shame on them. This is the Federalist society making our Supreme Court to rule their way for years to come. A bunch of rich duds that will pick business over every day working folks.

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