nominees for whom there are confidential vetting concerns. The senators spent much of the time sparring with one another over things that had nothing to do with Kavanaugh. Senator Grassley, particularly disappointed with some members’ behavior, was in rare form. The closed session would be the occasion to ask about confidential allegations against a nominee or to raise concerns about his ethical behavior. No such allegations were mentioned during the closed session. Senator Feinstein did not even attend.
The fourth day’s testimony was comparatively uneventful. Paul Moxley and John Tarpley, two members of the American Bar Association’s Standing Committee on the Federal Judiciary, explained their method for awarding Kavanaugh the ABA’s “well qualified” rating (unanimously). Then came a seemingly interminable parade of witnesses for and against Kavanaugh’s confirmation. Law professors, noted Supreme Court advocates, and former clerks spoke on his behalf, and the testimony of a few friends was intended to put a human face on the judge.
Then it was the opposition’s turn: young people, union members, a Methodist minister who wanted the government to force her church-employer’s insurance to pay for her IUD, and even Congressman Cedric Richmond, a civil rights leader who warned that Kavanaugh’s textualist approach to the law would threaten voting rights, education, and his favored criminal law policies. There was a woman with cerebral palsy who had been led to believe that Kavanaugh would take away her right to make her own medical decisions. (He had decided a case addressing how to manage care for wards of the state who were incapable of giving consent, a group to which this woman clearly did not belong.) The day ended with the Watergate figure John Dean testifying for the Democrats about Kavanaugh’s excessive deference to presidential authority. The hearings ended with a whimper, not a bang.
“This week’s hearing lacked the sordidness of the Thomas hearing,” reported the Washington Times, “but made up for it in vitriol—both on the dais and in the viewing gallery. One Republican senator said he counted more than 200 protesters ousted over three days.”55 A major source of the hearings’ drama was political ambition. Ever since Joe Biden’s grandstanding during the Bork hearings, senators have been powerfully tempted to exploit a perch on the Senate Judiciary Committee for public attention. Senators Booker and Harris attracted the most attention with their antics, but Senator Klobuchar would do her share of aggressive self-marketing when the Judiciary Committee resumed its hearings after the nominee was accused of sexual assault. The presence of those three presidential hopefuls on the committee encouraged other candidates to sound off about the nomination as vociferously as possible, lest their competitors on the committee steal the limelight. Senator Elizabeth Warren, for example, conspicuously stopped by the lobby in Dirksen to express her support for the protesters.56
Senator Jeff Merkley, who was considering a run for president but later decided against it, contributed to the partisan atmosphere with a litigious gesture. He filed a nuisance lawsuit against the president, the Senate majority leader, the chairman of the Senate Judiciary Committee, the Senate sergeant at arms and secretary, and Bill Burck. The Senate’s constitutional “advice and consent” responsibility was at risk, he alleged, because of a failure to supply senators with enough documents to assess the nominee thoroughly. The judge, an Obama appointee, let the frivolous suit die a procedural death.
Even Justice Ruth Bader Ginsburg, the most celebrated liberal on the Supreme Court, lamented that Kavanaugh’s hearing was a “highly partisan show.” “The vote on my confirmation was ninety-six to three, even though I had spent about ten years of my life litigating cases under the auspices of the ACLU,” she told an audience at the George Washington University Law School on September 13. She reminded the audience that Antonin Scalia’s confirmation was unanimous, adding, “That’s the way it should be. . . . I wish I could wave a magic wand and have it go back to the way it was.”57
Despite the circus-like atmosphere, Kavanaugh performed well enough that his confirmation was widely expected. “Brett Kavanaugh coasts toward Supreme Court confirmation despite document dispute, public protests” was USA Today’s assessment.58 Senator John Kennedy of Louisiana was so pleased, he declared, “I want to marry Brett Kavanaugh.”
Senator Grassley announced that the committee would vote on the nomination one week later, on September 20. A handful of Democrats, however, knew that there was more to come. What followed would make the contentious hearings that Kavanaugh had already endured pale in comparison.