By David B. Rivkin Jr.
Sept. 9, 2018, in The Hill
Democrats like to pillory President Trump for destroying American institutions and breaking the norms of conduct. Yet, during the Supreme Court confirmation hearing for Judge Brett Kavanaugh, Democrats blatantly and flippantly violated Senate norms, rules and traditions — and inflicted in the process considerable damage on the institution.
Sen. Kamala Harris (D-Calif.) interrupted the very first sentence of Senate Judiciary Committee Chairman Chuck Grassley’s (R-Iowa) opening statement. Protesters constantly interrupted questions asked by senators of both parties, as well as Kavanaugh’s answers; they were challenged only by Republican senators. But even in this chaotic atmosphere, Sen. Cory Booker’s (D-N.J.) decision to violate the committee’s confidentiality agreement with the executive branch, pursuant to which the committee received documents that otherwise would have been withheld, was particularly egregious.
On Wednesday night, Booker asked Kavanaugh about an email exchange dating to the aftermath of the 9/11 terror attacks. He quoted a committee confidential document — that is, a document that no senator had the authority to make public, and which Kavanaugh did not have in front of him.
Early Thursday, to ensure that Kavanaugh and the American public would be able to see the emails for themselves, Grassley worked with the Department of Justice and former President George W. Bush’s attorney to release several committee confidential documents, including the one Booker had quoted. They were taken off the “committee confidential” roster at 4 a.m.
Despite the accommodation extended to him by Grassley and the Trump administration, Booker proceeded to engage in a display of remarkable grandstanding. On Thursday morning, he announced he would release the documents marked committee confidential. “This is about the closest I’ll ever have in my life to an ‘I am Spartacus’ moment,” he said — even though the documents had already been released.
Booker’s performance is stunning, in large part because he could have had the emails released well in advance of the hearing. As Grassley often made clear, senators were given the opportunity to request the public release of documents that were initially marked committee confidential, but only Sen. Amy Klobuchar (D-Minn.) did so. It seems that Booker decided to put his presidential ambitions ahead of Senate protocol and transparency.
Booker’s flouting of committee confidential protocol is more than a violation of the Senate rules. What he did is also truly destructive for the legitimacy of the Senate itself, given the fact that the documents at issue were provided to the Senate Judiciary Committee based on an assurance to the executive that they would be treated in accordance with certain procedures. Given this precedent, this administration and its successors will be much more reluctant to provide documents to the Senate based upon assurances that they will remain confidential, thereby impairing the Senate’s oversight and legislative functions.
All of this underscores the low esteem in which the Senate Democrats hold their own institution. This conclusion is reinforced by the fact that the email string that precipitated all of this sound and fury does not contain anything particularly dramatic or support what Booker implied: rather than seeming like someone who approved of racial profiling, even in the tense post-9/11 days, Kavanaugh makes clear that he “favor[s] effective security measures that are race-neutral.”
In marked contrast to the poor behavior of some senators, the nominee behaved with remarkable patience and thoughtfulness. Kavanaugh answered questions fully, effectively and fairly, while showing himself to be a fair and impartial judge. He declined to answer questions about cases that might come before the court and he avoided being brought into current political debates; doing either of those things would have undermined his appearance of impartiality. In so doing, he followed what is known as the Ginsburg Standard.
As Andrew Grossman and I recently argued in The Wall Street Journal, all judicial nominees must follow the rule, invoked by Justice Ruth Bader Ginsburg during her confirmation hearing in 1993: “A judge sworn to decide impartially can offer no forecasts, no hints, for that would show not only disregard for the specifics of the particular case — it would display disdain for the entire judicial process.” Sen. Charles Schumer (D-N.Y.) once called this approach a “grand tradition,” and Kavanaugh upheld it by declining to answer questions about issues that might come before him, including abortion.
Meanwhile, Harris sought to pull Kavanagh into a political discussion of last year’s Charlottesville, Va., riots, and attempted to probe his view of how President Trump handled the situation. Kavanaugh responded, “I am not here to assess comments made in the political arena, because the risk is I’ll be drawn into the political arena.” With this answer, he again echoed Ginsburg, who refrained from answering political questions that were “not relevant to the job for which you are considering me, which is the job of a judge.”
Booker’s action has injured the Senate as an institution and merits an appropriate institutional response. Indeed, only the Senate has the constitutional authority to deal with this matter and, with this power, comes responsibility. Under Supreme Court precedent, Gravel v. United States (1972), Booker’s actions were clearly covered by the Constitution’s Speech or Debate Clause. Gravel, which involved the senator who made public during a committee hearing the top secret “Pentagon Papers,” teaches that senators are not subject to executive branch investigative or prosecutorial action in these circumstances, leaving the Senate as the only entity that is empowered to take any disciplinary action.
Whatever the nature of Booker’s action or his justification for it might be, the Senate is entitled to censure him, and that censure itself is immune from judicial review, as the D.C. Circuit made clear in Rangel v. Boehner(2015). There, a House member challenged his censure, and the court ruled that the judiciary had no power to inquire into congressional disciplinary actions because of the immunity conferred by the Speech and Debate Clause.
Kavanaugh showed respect for the Senate, the judiciary and the hearing itself. The same cannot be said for many of the senators asking him questions.
David B. Rivkin Jr. practices appellate and constitutional law in Washington, D.C. He served at the Justice Department and the White House Counsel’s office during the Reagan and George H.W. Bush administrations.