The third day of Brett Kavanaugh’s Senate confirmation hearing erupted in bitter partisan combat Thursday as once-confidential – and potentially controversial – records on the Supreme Court nominee began leaking into public view.
Democrats have fumed for weeks over the withholding of hundreds of thousands of pages of documents from Kavanaugh’s years in the George W. Bush White House, including a massive tranche of records that lawyers working for Bush had limited only to Judiciary Committee senators. That secrecy collapsed in dramatic fashion Thursday as Democratic senators vowed to begin releasing records they said were unfairly shrouded and highly relevant to the confirmation.
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One of those confidential documents, obtained by POLITICO, shows Kavanaugh leaving the door open to the high court overturning Roe v. Wade. “I am not sure that all legal scholars refer to Roe as the settled law of the land at the Supreme Court level since [the] Court can always overrule its precedent, and three current Justices on the Court would do so,” President Donald Trump’s nominee wrote in 2003.
That characterization is a distinct contrast with the more measured view of Roe as precedent that Kavanaugh offered on Wednesday. Beyond the abortion-rights email, first reported by The New York Times, several other Democrats vowed Thursday morning that they would release other committee-confidential documents from Kavanaugh’s past.
After Sen. Cory Booker (D-N.J.) said he would release a confidential email on racial profiling he had referred to while questioning Kavanaugh on Wednesday night — describing the gesture as “civil disobedience” and an “’I am Spartacus’ moment” – three more Democrats echoed his sentiment.
Even after Senate Majority Whip John Cornyn (R-Texas) openly jabbed Booker as more concerned with his own 2020 ambitions than the chamber’s rules, saying that “running for president is no excuse for violating the rules,” Democrats linked arms in promising to break the confidentiality of the documents.
“Let’s jump into this pit together,” Senate Minority Whip Dick Durbin (D-Ill.) told Booker, adding that “if there is going to be some retribution against the senator from New Jersey, count me in.”
The committee-confidential documents on Kavanaugh received that designation after a review by Bill Burck, the presidential records representative working on Bush’s behalf who is also personally close to Kavanaugh after serving under him in the Bush administration. While Republicans have pointed to the vast volume of documents publicly released on Kavanaugh, Democrats have howled that Burck’s review is a tainted by partisanship and conflict of interest.
In the past, the committee has shielded documents as confidential that are “very specific and usually very personal to a nominee, and it was done by bipartisan agreement,” Durbin said. “That is a far cry from what we have faced with this nominee.”
The dispute threatened to swamp the second day of questioning for Kavanaugh, with Judiciary Chairman Chuck Grassley (R-Iowa) floating a closed session later Thursday to discuss the matter. Minority Leader Chuck Schumer (D-N.Y.) is also expected to use the same procedural maneuver he employed Wednesday to try to force the confirmation hearing off course unless the Senate adjourns within two hours after convening.
Despite the clashes on Thursday, Kavanaugh’s prospects for confirmation by month’s end remain strong given the GOP’s 51-49 majority in the chamber. No Republican swing vote has aired public skepticism about his qualifications so far.