Moving closer to the kind of full-scale revolt progressives have been urgently demanding from Democrats throughout Supreme Court nominee Brett Kavanaugh's confirmation hearings, Sens. Mazie Hirono (D-Hawaii) and Cory Booker (D-N.J.) on Thursday defied Senate rules by unilaterally releasing documents that had been deemed "committee confidential" and hidden from the public.
"This process has been a sham. The fact that tens of thousands of documents revealing a Supreme Court nominee's views on key issues were deemed committee confidential and not available to the public reflects the absurdity of this process."
—Sen. Cory Booker"As I've been saying from the beginning, this process has been a sham," Booker said in a statement after releasing documents related to Kavanaugh's views on racial profiling. "The fact that tens of thousands of documents revealing a Supreme Court nominee's views on key issues were deemed committee confidential and not available to the public reflects the absurdity of this process."
"The public has a right to access documents about a Supreme Court nominee's views on issues that are profoundly important, such as race and the law," Booker added. "This process has demonstrated an unprecedented level of secrecy and opaqueness that undermines the Senate's constitutional duty to advice and consent."
After Sen. John Cornyn (R-Texas) warned Booker during Thursday's confirmation hearing that he could be removed from the Senate for releasing the Kavanaugh documents, Booker responded: "Bring it."
— Aaron Rupar (@atrupar) September 6, 2018
At around the same time Booker released the racial profiling documents—a move that comes on the final day of Kavanaugh's confirmation hearings—Hirono joined her colleague in disregarding Senate rules by uploading screenshots of documents Republicans "don't want you to see—because they show that Judge Kavanaugh wrongly believes that Native Hawaiian programs are constitutionally questionable."
"I defy anyone reading this to be able to conclude that it should be deemed confidential in any way, shape, or form," Hirono added.
These are the docs Rs don't want you to see—because they show that Judge Kavanaugh wrongly believes that Native Hawaiian programs are Constitutionally questionable. I defy anyone reading this to be able to conclude that it should be deemed confidential in any way, shape, or form. pic.twitter.com/yj31vDNGia
— Senator Mazie Hirono (@maziehirono) September 6, 2018
Effectively proving Hirono and Booker's point that these documents were marked "committee confidential" and withheld from the public without any justification, Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa) formally released the same documents shortly after the two Democrats published them online.
But the documents made public on Thursday represent a minuscule fraction of the total number of the estimated 141,000 pages Grassley has designated as "committee confidential," despite Democrats' objection that Grassley does not have the sole authority to make such a designation. Additionally, as Common Dreams reported on Saturday, President Donald Trump has asserted "executive privilege" to withhold 100,000 pages of Kavanaugh's record from the public.
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"Republicans know how extreme Brett Kavanaugh's record is, so they're making up rules to hide it from the public. The American people deserve to know a SCOTUS nominee's views on issues like race and abortion," Sen. Elizabeth Warren (D-Mass.) tweeted on Thursday. "I stand with Cory Booker and Mazie Hirono."
Republicans know how extreme Brett Kavanaugh's record is, so they're making up rules to hide it from the public. The American people deserve to know a SCOTUS nominee's views on issues like race and abortion. I stand with @CoryBooker and @MazieHirono. https://t.co/rKXLsv8qew
— Elizabeth Warren (@SenWarren) September 6, 2018
The two Democratic senators' decision to bypass Senate rules to make several so-called "confidential" Kavanaugh documents available to the public comes as progressive groups continue to pressure Democrats to use every procedural tool at their disposal to block the lifetime nomination of a judge that poses a dire threat to women, workers, and the planet.
In a joint statement on Wednesday, a coalition of progressive organizations argued that Grassley does not have the power to hide Kavanaugh documents from the public and urged Senate Democrats to "immediately read them into the Senate record." The day before, Democrats had been urged by those opposed to both Kavanaugh as a jurist and the Republican-controlled confirmation process to "just get up and walk out" of the hearing.
And while progressives applauded Hirono and Booker for releasing the Kavanaugh documents, they argued that Democrats must go much further to block the judge's nomination.
"If Booker and the other Democratic senators are serious here, they should all start sequentially releasing all prejudicial and incriminating documents against Kavanaugh now during the course of the hearings when they will be protected by the Speech or Debate Clause [of the Constitution]," said Francis Boyle, professor of international law at the University of Illinois College of Law. "This would include documents relating to torture and war crimes."
In an op-ed for Common Dreams on Thursday, political analyst and essayist Thomas Neuburger argued that Democrats have the power to block Kavanaugh's nomination to the Supreme Court "if they want to."
"First, if Republicans don't agree to table the nomination until 2019, every Democratic senator but one will boycott the Senate chamber for the rest of the year," Neuburger wrote, outlining one possible procedural strategy Democrats could deploy. "Then the one remaining Democrat, a rotating position, will rise to deny unanimous consent on every matter the Senate tries to take up, including each quorum call. This means all 50 Republicans (with the passing of John McCain) must be in or near the chamber on any day Republicans wish to do business."
"Even if Democrats execute this perfectly though, and Kavanaugh is confirmed, they will nonetheless prove that the 'constitutional revolution' his confirmation guarantees—which even Republican voters will come to hate—is entirely of Republican doing," Neuburger concluded. "That will pay Democrats dividends down the road, in the same way that being complicit could cost them dearly."