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The Spectacular Desperation of the Kavanaugh Hearings

Brett Kavanaugh’s Supreme Court confirmation might be inevitable, but it has unleashed an urgent and combative response from congressional Democrats

Brett Kavanaugh Getty Images/Ringer illustration

On Thursday, Cory Booker dared the Republican leadership to expel him from the Senate.

The New Jersey senator, a Democrat, sought to publicize emails, marked as confidential documents, regarding the Supreme Court nominee Brett Kavanaugh’s support for racial profiling. The emails date back to the first years of George W. Bush’s presidency, when Kavanaugh, then an adviser to the White House counsel, skeptically described race-based protections in federal transportation policy. During Kavanaugh’s second day of testimony before the Senate Judiciary Committee, Booker threatened to publish the emails despite objections from the committee’s Republican leadership. “Running for president is no excuse for violating the rules of the Senate,” Republican Senator John Cornyn countered. Booker defied Cornyn’s warning and released the emails on Thursday morning for public consumption. Booker’s Democratic colleagues, including Chuck Schumer and Kamala Harris, have supported Booker’s rebellion against the committee. In response to Cornyn’s reading of the relevant confidentiality rule aloud and stressing the potential for the senator’s expulsion, Booker told Cornyn, “Bring it.”

Booker faces no real risk of expulsion. For one, the U.S. Senate requires a two-thirds supermajority vote in favor to force a member from their seat. Additionally, Congressional staffers from both parties have told reporters that the emails in question were, indeed, previously cleared for public release. (Senate Judiciary chairman Chuck Grassley, a Republican, notes that the emails are now posted to his committee’s website.) Booker was stunting. The emails aren’t a scandal so much as means to underscore the Supreme Court nominee’s GOP bona fides and undermine Republican efforts to brand Kavanaugh as an admirably bland, inoffensive figurehead. Now, to the Democrats, Kavanaugh is public enemy no. 1.

In the two months since Trump nominated Kavanaugh, the Democrats have scrambled to block the federal judge’s lifelong appointment to the Supreme Court. Initially, Kavanaugh’s critics underscored the likelihood that the former Bush staffer would help the Supreme Court overturn Roe v. Wade; the Democrats cite abortions rights in their desperate efforts to recruit pro-choice Republican senators Susan Collins and Lisa Murkowski into a slim majority coalition to block Kavanaugh’s appointment. In recent weeks, liberal activists and Democratic legislators have expanded their scrutiny to include Kavanaugh’s thoughts about racial profiling and presidential power, the latter concern culminating with a debate over whether Donald Trump might pardon his disgraced campaign aides and maybe even himself.

In the confirmation hearings, Republican Senator Orrin Hatch has promised Kavanaugh that the Senate will, inevitably, confirm his appointment to the Supreme Court. He is probably correct: Collins is a notoriously fickle savior, and the Republican majority is too large and ambitious to pass up a Supreme Court seat as reward for empowering Trump, who easily appointed one reliably conservative justice, Neil Gorsuch, to the nation’s highest court last year. “We are going to confirm you,” Hatch told Kavanaugh in his opening statement—the senator’s optimism clashing with shouts from several anti-Kavanaugh protesters in the committee’s hearing room.

For the past three days, anti-Kavanaugh activists have infiltrated the hearings and routinely shouted down the proceedings; the Capitol police have arrested more than 212 protesters. But Booker and Harris—two Democratic presidential hopefuls—have echoed the protesters from the opposite, powerful side of the room. In his rebellion against the Republican leadership, Booker flattered his party’s activist base in a risky, flamboyant manner that the Senate Democrats, led by Schumer, have otherwise stifled in their dealings with Trump and Senate Majority Leader Mitch McConnell. The opposition to Kavanaugh recalls the January 2018 government shutdown that congressional Democrats briefly forced to prevent the Trump administration from terminating federal protections for U.S. immigrants—among the very most unfortunate subjects of Trump’s political program. In Kavanaugh, the Democrats have found a fresh, new face for their referendum on abortion rights and other civil rights under Trump.

The spectacular opposition to Kavanaugh will not prevent his appointment. Booker’s rebellion, however, suggests some electrified nerve among congressional Democrats. The voters are eager to undermine Trump at his electoral weak point; the senators might begin to resist the president with passion befitting the unprecedented urgency of the Democratic base. Schumer might finally avenge Obama’s final, discarded Supreme Court nominee, Merrick Garland. The Democrats have lived to regret their capitulation to McConnell’s blockade. They’re a more desperate party now, and a more broadly liberal coalition, including socialists and other leftists who have forged the party’s emergent hardline stance against Trump and the Republican Congress. Practically, the congressional Democrats are in worse shape now, opposing Kavanaugh, than they were under Obama. They’re also more urgently combative—and competitive—than they’ve been in a decade. They may not block Kavanaugh, but Kavanaugh might nonetheless inspire the midterm backlash to the president, and the party, who engineered his appointment. For Democrats, the expulsion is better late than never.