opaque funding streams of organizations on his side reveals his true interest. He did not advance the cause of transparency per se, but used the disclosure of donors as a weapon against his political opponents.50
On Thursday, September 6, Cory Booker stunned the committee by announcing even before questioning began that he would violate Senate rules by releasing emails that had been marked “committee confidential.” He tweeted a link to documents that he said revealed troubling racial messages but that actually consisted of discussions about security screening procedures in the immediate aftermath of 9/11 and whether they should include race and national origin.51 In fact, Kavanaugh opposed racial profiling. In an email to a colleague in the White House counsel’s office in 2002, Kavanaugh had written:
The people who favor some use of race/natl origin obviously do not need to grapple with the interim question. But the people (such as you and I) who generally favor effective security measures that are race-neutral in fact DO need to grapple—and grapple now—with the interim question of what to do before a truly effective and comprehensive race-neutral system is developed and implemented.
The year after Kavanaugh wrote that email, the Bush administration issued guidance prohibiting law enforcement agencies from using racial profiling.52
The emails were a dud, but Booker—also preparing to announce his run for the presidency—tried to call attention to his breaking of Senate rules. “I knowingly violated the rules put forward,” he said, adding that he realized he was engaged in civil disobedience and would accept the consequences. He practically begged the Republicans to try to expel him from the Senate and remarked that this was the closest he would come to an “I am Spartacus” moment. Since there was nothing to connect Booker’s situation with the famous scene from the 1960 Kirk Douglas movie, in which a group of slaves all claim to be the outlaw Spartacus to help the real Spartacus avoid being crucified, the remark came across as silly, exposing the senator to no small amount of mockery. He was in no danger of expulsion, in any case, because, despite his self-accusation, he had not violated any rules. He had requested the day before that the documents in question be cleared for release, and staff worked through the night to clear them. Bill Burck had informed him at four o’clock that morning that he was free to release them, as Grassley had noted at the hearing just before Booker’s Spartacus moment.53
Booker was intent on violating the rules, however, and he released what he believed to be confidential emails throughout the day. The grandstanding was unnecessary. “Had we been consulted on these universally released documents, we would have consented to their public disclosure,” Burck wrote in a letter.54 The White House and Senate staffs worried that Booker’s theatrics would make future nominees and administrations less willing to share information about nominees, which is the property of the administration. After the experiment with modern e-discovery procedures and providing digital documents that are easily searchable, the confirmation process might return to the closely guarded rooms of filing boxes of previous decades.
Senator Blumenthal tried to embroil Kavanaugh in a controversy over President Trump’s harsh rhetoric. Reading tweets that criticized Justice Ruth Bader Ginsburg for her critique of him, Blumenthal asked if Kavanaugh agreed with the president that she was an embarrassment for making political statements about him. Kavanaugh said he wouldn’t get “within three zip codes” of a political controversy. It was Blumenthal’s questioning of Gorsuch about a different set of Trump tweets that caused the president to briefly waver in his support of the nominee. Kavanaugh navigated the minefield more nimbly, and it would pay off.
After a long day of questioning that kept Senator Grassley up past his normally firm nine-o’clock bedtime, the public portion of Kavanaugh’s testimony closed after ten p.m. The nominee had testified for thirty hours across three days. The protesters and supporters went home, but the judge and the senators stayed for the closed portion of the hearing. The spirited debate about “committee confidential” documents obscured the fact that senators would have this opportunity to question the nominee on all manner of confidential topics, including work product, sensitive personal financial information, and other ethical or legal questions uncovered by the FBI background investigation. The group remained in closed session for about an hour. It is customary to continue the closed session for that long even if there are no concerns about a nominee’s record, so as not to call attention to