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If You Want to Pick Judges, You Have to Win

Senate Democrats led a coordinated attack on Judge Brett Kavanaugh’s confirmation hearing Tuesday.  Organized by Chuck Schumer (D-NY) and led by Kamala Harris (D-CA), Democrat members of the Senate Judiciary Committee staged a kind of rolling filibuster when, only several seconds into his introduction, Ms. Harris interrupted committee chairman Chuck Grassley’s (R-IA) opening statement.

She and her committee colleagues, chiefly those who may run for president, including Richard Blumenthal (D-CT), Amy Klobuchar (D-MI), and Corey Booker (D-NJ), took turns interrupting with nonsense motions to derail the Senate hearing organized to rule on Trump’s nomination of Kavanaugh to replace the vacant Supreme Court seat left so by retired Justice Anthony Kennedy.

Free For All

The early interruptions by senators went on backed by a consistent and low impact gavel – like a metronome keeping pace with the expurgations of Senator Booker and others.  They want, need, must have, above all else, a delay in these proceedings!  Was 84-year-old Chairman Grassley having a senior moment?  While he can’t control the behavior of those in the audience, he could have taken control of the hearing itself, instead of letting it devolve into the free for all one might expect of a student council meeting.

Grassley himself explained to the assembled, after another Senator’s outburst, that he often found it less disruptive to let an out of order legislator go on, rather than challenge the outburst itself.  That strategy only works if the ejaculation is genuine, however, and not a conspiracy to derail and destroy the proceedings.

“This is the first confirmation for a Supreme Court justice I’ve seen, basically, according to mob rule,” said John Cornyn (R-TX)

Millions of Documents

What’s the problem?  Why are Senate Democrats so united in opposition to holding this hearing now?  It’s the millions of documents they need to review to have a full appraisal of the judge’s past work to evaluate his candidacy for the high court.  Of course, Kavanaugh didn’t write millions of pages.  When he worked for President Bush as Staff Secretary, millions of pages of documents passed through his hands or digital hands anyway.

Conveniently enough, if Democrats had access to all the paperwork that Kavanaugh had during his time working for President Bush, they would have lots of political ammunition against at least dozens of high-level Republicans, if not more.  Kavanaugh’s former job, Staff Secretary, is literally the point person for paperwork and the President of the United States.  Rice University’s Baker Institute’s White House Transition Project report on the Office of the Staff Secretary states:

The contemporary role of the Staff Secretary is best described as the “last substantive control point before papers reach the Oval Office.” Members of the Barack Obama administration described two key parts of the job: “never assume that the president got what he needed” and “make sure that all the relevant people have had input so the president gets the full range of perspectives on an issue.” Given the pivotal position of the Office of Staff Secretary in presidential paper flow, it regularly handles complex policy issues and its work can be highly political.

Senate Democrats want the complete records of Kavanaugh’s communications for the three years he held the Staff Secretary position.  Maybe they want them to use against the many people, Republican leaders, who have given candid policy advice to President Bush.  If it’s one thing politicians appreciate is that their candid thoughts are not likely to be well received by the public.  Perhaps they want them because they’ll otherwise never get them, and that is a convenient excuse for not participating in a nomination they oppose.  Since many of the records involve privileged communications, as well as classified ones, George W. Bush, as well as President Trump, have privilege claims over much of them.  Finally, the National Archive said that sorting them out for distribution to the Senate Judiciary Committee wouldn’t be done until late October they estimate.  National Archives’ general counsel said, “the Archive has literally millions of pages of records related to him.”


As we evaluate the need for months-long hearing delays into the Supreme Court’s upcoming term and perhaps the next elections for Congress, let’s remember that Judge Kavanaugh is currently on the highest federal appellate court a judge can be on, outside of the Supreme Court, for over a decade, and that he has published over 300 opinions there.

After about an hour of tossing out red meat to their base, Judiciary Committee Democrats allowed the hearing to commence (somewhat).  Then it was the laity’s turn.  It seemed there were more protestors than Senators or media people in the hearing room Tuesday as every few minutes another woman (they were almost all women) would start screaming unintelligible things until they were removed with what seemed like excessive patience by the Capitol police.  The Hill reports 61 people were removed from the hearing room and arrested.  All seemed to oppose Kavanaugh.  None of those arrested for disrupting the proceedings were Senators.

Another Democrat theme was to try and clobber Kavanaugh with the idea that he should somehow delay the proceedings himself.  Senator Hirono (D-HI) said Kavanaugh would display a “fundamental mistrust of the American people” if he didn’t.  Neither she nor any of her colleagues who pressed upon Kavanaugh a duty to delay offered what parliamentary procedure this nominee might use to achieve their goals.


Nebraska Senator Ben Sasse, a Republican, took his colleagues to task for trying to turn the Supreme Court into some sort of miniature Congress, rather than a judicial body.  Sasse discussed how the Congress abdicated so much of its power to executive agencies and how that has resulted in the politicization of the courts, instead of Congress.  “The hysteria around Supreme Court nomination confirmation hearings is coming from the fact that we have a fundamental misunderstanding of the role of the Supreme Court in American life now,” Sasse said. “Our political commentary talks about the Supreme Court like they are people wearing red and blue jerseys; that’s a really dangerous thing.”

There was no direct back and forth Tuesday between the Senators and nominee – that will have to wait until confirmation day 2.  Hold onto your hats.  For all our sakes, except perhaps Democrat Congressional Campaign Committee coffers I suppose, Chairman Grassley needs to be a much more active participant in the hearings, and he seems to agree, saying at the hearings’ end:

I’m not going to let happen tomorrow what I shouldn’t have let happen today because I’ve been instructing people who run committees, either you run the committee or the committee runs you …  You guys have been successful today in running the committee. I don’t want it to happen tomorrow.

Let’s hope Grassley can get this train back on track and we can get on with a more traditional process, where the Senators make statements dressed up as questions, and the nominee tells everyone they cannot answer questions people really do want to be answered.  This is America.

For those playing Merrick Garland bingo at home, he was first mentioned by Dick Durban (D-Il) at 9:56 A.M.

Read More From Scott D. Cosenza, Esq.

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