Kavanaugh Confirmation Partisan brawl erupts after Booker releases Kavanaugh docs The documents in question, earlier believed to be confidential, were cleared for release.

The third day of Brett Kavanaugh’s Senate confirmation hearing erupted in bitter partisan combat Thursday as once-confidential — and potentially controversial — records on the Supreme Court nominee began leaking into public view.

Democrats have fumed for weeks over the withholding of hundreds of thousands of pages of documents from Kavanaugh’s years in the George W. Bush White House, including a massive tranche of records that lawyers working for Bush had limited only to Judiciary Committee senators. That secrecy collapsed in dramatic fashion Thursday as Democratic senators vowed to begin releasing records they said were unfairly withheld and highly relevant to the confirmation.


One of those documents shows Kavanaugh leaving the door open to the high court overturning Roe v. Wade. “I am not sure that all legal scholars refer to Roe as the settled law of the land at the Supreme Court level since [the] Court can always overrule its precedent, and three current Justices on the Court would do so,” President Donald Trump’s nominee wrote in 2003.

That characterization is a distinct contrast with the more measured view of Roe as precedent that Kavanaugh offered on Wednesday. But the day before the document leaked, Kavanaugh was asked on about the exact sentiment he shared back in 2003 and portrayed it as merely a restatement of legal scholars’ opinion, “different from … my position as a judge.”

And while Sen. Cory Booker (D-N.J.) vowed to risk expulsion from the chamber if necessary in order to get Kavanaugh documents into the public eye – likening the gesture to “civil disobedience” and an “’I am Spartacus’ moment” – Republicans responded that the records at issue had already been cleared for use early Thursday morning.

“Somebody’s not doing very good homework if they’re asking for committee-confidential stuff to be disclosed that’s already available to the public,” Judiciary Chairman Chuck Grassley (R-Iowa) said.

Still, it remains unclear how many senators were aware that the confidentiality restrictions on the documents had been eased when Booker first spoke out on Thursday. Senate Majority Whip John Cornyn (R-Texas) openly jabbed Booker in that moment as more concerned with his own 2020 ambitions than the chamber’s protocol, signaling that he was unaware of the confidentiality being lifted.

The committee’s top Democrat, California Sen. Dianne Feinstein, also said that she “wasn’t notified” of the early-morning decision to free the Kavanaugh documents for public release.

According to a GOP Judiciary spokesman, however, Booker’s staff was aware that the documents the Democratic senator described as confidential were free to publicly release.

Booker spokeswoman Kristin Lynch countered that “Cory and Senate Democrats were able to shame the committee into agreeing to make” the disputed documents available to the public, describing the release of confidential documents as “exactly what he’s done.”

“Senate Republicans are doing everything they can to distract from their sham process to rush through a Supreme Court justice who will overturn Roe v. Wade, demolish the Affordable Care Act, and protect President Trump from being investigated,” Lynch added in a statement.

Indeed, Booker followed his morning maneuver on Kavanaugh records by releasing two more rounds of confidential records that deal with contentious nominations during the Bush administration. A Republican aide confirmed that Booker’s second document leak, unlike his first, was not cleared in advance for public release.

Republicans dismissed the back-and-forth over the documents as little more than a political show.

“I think it was 2020 presidential politics, and we’re seeing an awful lot of theatrics out of the Judiciary Committee this week,” said Sen. Ted Cruz (R-Texas), himself a former presidential hopeful.

Beyond Kavanaugh’s email on abortion rights, first reported by The New York Times, other Democrats on Thursday released separate previously committee-confidential documents from his past.

As Booker released a Kavanaugh email on racial profiling he had referred to while questioning the nominee on Wednesday night, Sen. Mazie Hirono (D-Hawaii) also released a formerly confidential email she cited Wednesday in which Kavanaugh questions whether native Hawaiians are an indigenous group.

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Democrats linked arms in vowing to break the confidentiality of documents they see as relevant to vetting Trump’s pick.

“Let’s jump into this pit together,” Senate Minority Whip Dick Durbin (D-Ill.) told Booker, adding that “if there is going to be some retribution against the senator from New Jersey, count me in.”

The committee-confidential documents on Kavanaugh received that designation after a review by Bill Burck, the presidential records representative working on Bush’s behalf who is also personally close to Kavanaugh after serving under him in the Bush administration. While Republicans have pointed to the vast volume of documents publicly released on Kavanaugh, Democrats have howled that Burck’s review is a tainted by partisanship and conflict of interest.

In the past, the committee has shielded documents as confidential that are “very specific and usually very personal to a nominee, and it was done by bipartisan agreement,” Durbin said. “That is a far cry from what we have faced with this nominee.”

Once the early jostling over documents ebbed, senators on the Judiciary panel commenced a second round of questioning Kavanaugh about his views on everything from executive power to his view of the “originalist” reading of the Constitution closely identified with the late Justice Antonin Scalia.

Sen. Sheldon Whitehouse (D-R.I.) pressed Kavanaugh on his statement Wednesday that he had not “taken a position” on whether indictment of a sitting president is constitutional. Kavanaugh acknowledged that he had raised his hand at a 1998 panel to indicate he does not believe sitting presidents can be indicted, but he challenged Whitehouse with a narrower reading of his position as solely aligning with the Justice Department’s established protocol – not a stance on constitutionality.

As questioning went past the 12-hour mark for the second straight day, Kavanaugh remained in much the same vein he started the hearing: staying cool under pressure, with a few exceptions, and offering few if any clear indications of how he might view on divisive issues. He declined to tell Sen. Kamala Harris (D-Calif.) that either the high court’s landmark 2015 ruling on a right to same-sex marriage or its 2016 upholding of abortion rights in Whole Woman’s Health v. Hellerstedt was correctly decided.



Kavanaugh also said he couldn’t answer a question from Booker about whether any aide on the team preparing him for the hearings has communicated with Burck during the process of screening documents from the nominee’s past in the Bush administration. The judge added that he himself has “been staying out of it, for obvious reasons.”

Despite the heated questioning on Thursday, Kavanaugh’s prospects for confirmation by month’s end remain strong given the GOP’s 51-49 majority in the chamber. No Republican swing vote has aired public skepticism about his qualifications so far, although Democrats have held out hope that the revelations in Thursday’s newly released documents might shake some moderates in both parties off the fence.

Adam Cancryn contributed reporting.

