WASHINGTON—I will grant you that it didn't have the combative je ne sais quoi of the possibility that Alex Jones and Marco Rubio would throw hands, which occurred outside another hearing in another building. But there was a serious bit of eminence grise-on-eminence grise crime in the Senate Judiciary Committee between Chairman Chuck Grassley and Democratic Senator Pat Leahy.

It came at an interesting moment, because Judge Brett Kavanaugh had been caught by Leahy with a line of questioning for which the nominee clearly had not been prepared. It involved an episode while Kavanaugh worked in the White House counsel's office under President George W. Bush. In 2004, it was revealed by Charlie Savage, then working at the Boston Globe, that Republican staff members on the Judiciary Committee had penetrated the computer files of the Democratic senators on that committee that were concerned with judicial nominees, and that, in addition to using the purloined files to their own advantage, those staffers shared them with the media.

The revelation comes as the battle of judicial nominees is reaching a new level of intensity. Last week, President Bush used his recess power to appoint Judge Charles Pickering to the Fifth Circuit Court of Appeals, bypassing a Democratic filibuster that blocked a vote on his nomination for a year because of concerns over his civil rights record. Democrats now claim their private memos formed the basis for a February 2003 column by conservative pundit Robert Novak that revealed plans pushed by Senator Edward M. Kennedy, Democrat of Massachusetts, to filibuster certain judicial nominees. Novak is also at the center of an investigation into who leaked the identity of a CIA agent whose husband contradicted a Bush administration claim about Iraqi nuclear programs.

Citing "internal Senate sources," Novak's column described closed-door Democratic meetings about how to handle nominees.

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Its details and direct quotes from Democrats -- characterizing former nominee Miguel Estrada as a "stealth right-wing zealot" and describing the GOP agenda as an "assembly line" for right-wing nominees -- are contained in talking points and meeting accounts from the Democratic files now known to have been compromised. Novak declined to confirm or deny whether his column was based on these files.

"They're welcome to think anything they want," he said. "As has been demonstrated, I don't reveal my sources." As the extent to which Democratic communications were monitored came into sharper focus, Republicans yesterday offered a new defense. They said that in the summer of 2002, their computer technician informed his Democratic counterpart of the glitch, but Democrats did nothing to fix the problem.

Other staffers, however, denied that the Democrats were told anything about it before November 2003.

Leahy got Kavanaugh floundering on what, if anything, he knew about this rather garish dirty trick. Pretty plainly, Leahy was relying on documents marked "Committee-Confidential," which is material available to committee members, who can read the documents, but not share them publicly. Leahy rather obviously knew enough to imply that Kavanaugh at least was aware of the espionage, and that he received at least some of the stolen documents.

“I’m concerned because there is evidence that Mr. Miranda provided you with materials that were stolen from me, and that would contradict your prior testimony. There is no reason that...can’t be made public.”

Kavanaugh was plainly up a tree. He didn't know what Leahy knew. He kept going back to the self-evident fact that sharing information about judicial nominations is business as usual, an argument that was completely off the subject. What Leahy wanted to know was whether or not Kavanaugh was handling hot documents. And he was using material only he knew about.

Leahy:“Now when you worked at the White House did anybody ever tell you they had a mole that provided you with secret information related to nominations?”

Kavanaugh: “I don’t remember the reference to a ‘mole’ which sounds highly specific. But it’s common, I think, for everyone to talk to each other, at times, and share information.”

Leahy: “So you never received information from an email from a Republican staff member claiming to come from a spying on the Democratic pol?”

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Kavanaugh: “I don’t re—uh, I’m not going to rule anything out, Senator, uh, but if, if—I did I wouldn’t have thought that, uh, anything, of the, uh, literal meaning of that.”

Leahy: “Would it surprise you if you got an email saying that you got that from somebody spying?”

Kavanaugh: “Well, is there such an email senator? I mean, I don’t know, That’s the, uh, yeah."

Leahy: “Well, we’d have to ask the chairman what he has in his confidential material.”

This is what got up Grassley's nose. The two of them sparred heatedly, with Grassley insisting that Leahy could look at the documents, and Leahy maintaining that the documents he plainly was using to question Kavanaugh should be made public.

Grassley: “Hey, just stop a minute here! You’re talking about the period of time he was White House counsel, that material is available to everybody.”

Leahy: “So that bit of the material about him that’s marked committee confidential? If that’s what the chairman’s saying we have a whole new series of questions."

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It was briefly entertaining, but it pointed toward a major line of attack for the Democrats on the committee, one that was foreshadowed on Tuesday. Kavanaugh's time in the White House was as a purely political actor in some of the most controversial—and arguably, un-American—decisions ever made by a president.

(This probably accounts for the unusual amount of 9/11 talk in Wednesday's hearings. Kavanaugh cited it while tap-dancing around whether or not he had any input on the torture program, and Lindsey Graham gave him a chance to talk about how terrifying that day was for everyone in the White House.)

It also is a way to demonstrate how carefully groomed Kavanaugh has been throughout his entire career to come to the place he is today. In the conservative takeover of the federal judiciary, Brett Kavanaugh is a symptom of a pre-existing condition.

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Charles P. Pierce Charles P Pierce is the author of four books, most recently Idiot America, and has been a working journalist since 1976.

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