Law & the Courts

Kamala Harris Wins the Democrats’ Kavanaugh Primary

Sen. Kamala Harris speaks during Supreme Court nominee Judge Brett Kavanaugh’s Senate Judiciary Committee confirmation hearing, September 4, 2018. (Joshua Roberts/Reuters)
Some of the 2020 presidential contenders competed in the Judiciary Committee’s confirmation hearings. The most hostile inquisitor won.

From the opening moments of the Senate Judiciary Committee hearings on the nomination of Judge Brett Kavanaugh to the U.S. Supreme Court, the Democratic caucus made it clear they knew they couldn’t stop his confirmation. Faced with a choice between a dramatic walkout to protest their inability to scrutinize every piece of paper the nominee has handled throughout his long government career and an attempt to disrupt or postpone the proceedings, the Democrats decided on the latter.

That choice ensured that the first days of the hearings would be a circus, replete with repeated outbursts and disruptions by audience members (most of whom appeared to be affiliated with the Women’s March, an anti-Trump resistance group) and tedious orations from the Democrats about their futile fishing expedition for something that might sink Kavanaugh’s nomination even as Republicans countered with softball questions and references to the judge’s record as a girls’ basketball coach.

With Kavanaugh gamely sticking to the “Ginsburg rule” — so named for Justice Ruth Bader Ginsburg’s refusal to give an opinion about any issue that might conceivably come before the Supreme Court during her hearings — during the first day of questioning, none of the Democrats were able to outwit or trick him into making a statement that might derail his confirmation. That made for an apt illustration of the dysfunctional nature of Congress (a point that Senator Ben Sasse made ably during his comments on the first day) as well as an unedifying spectacle that demonstrated that all the talk about bipartisanship and civility at the John McCain funeral last weekend from members of the Washington establishment was as hypocritical as it was empty.

But the proceedings were not bereft of interest for those interested in the ongoing competition for the leadership of both the resistance and the Democratic party. With three possible candidates for the presidency among the Democrats on the committee, the confirmation hearings were not so much a test of the minority’s inability to thwart the nomination as a competition that might be best described as among the first cattle calls for 2020 hopefuls. Senators Amy Klobuchar, Cory Booker, and Kamala Harris all got a leg up in the race just because of their presence on the committee, and each performed according to his or her reputation. But while their speeches and questions didn’t do them any harm, there was no doubt that Harris emerged as the winner of the Democrats’ Kavanaugh primary.

Although Senator Mazie Hirono matched her for sheer hostility, with a prosecutorial style that seemed more in place at a Stalinist show trial than at a confirmation hearing, among the 2020 contenders Harris was the toughest questioner of the trio. And by deliberately insinuating that Kavanaugh was somehow connected to the Trump administration’s efforts to defend itself against the Russia-collusion probe led by Robert Mueller, Harris not only gained the kind of publicity that is fundraising gold for a potential candidate, she also made it clear that she would stop at nothing in her efforts to smear opponents. If Democrats are looking for someone who is willing to be ruthless enough to take on President Trump even if that means engaging in gutter politics — and that seems to be exactly what their base is longing for — then Harris’s approach may give her the boost she needs to fuel interest in her presidential prospects.

Klobuchar’s interest in the presidency is well known, but if she has gotten the least buzz among the many Democratic senators thinking about 2020, the reason for that was seen in the hearings. Her approach to questioning was entirely conventional. Though her barbs aimed at Kavanaugh and attempts to get him to declare his opposition to liberal legal sacred cows was intended to spark controversy, she didn’t succeed. In a forum in which demonstrating hostility to the nominee and all things conservative and Trump was the objective, Klobuchar was just too “Minnesota nice” to make much of an impact.

Booker did better, though he had to break the committee’s rules to do so. To score points on the issue with the resistance, the New Jersey senator tried to highlight Kavanaugh’s views on race, but he had to try to trick the nominee. At one point during his questions, he cited an email with language about racial profiling and race-based government policies. But it was only after some pushback from Kavanaugh that listeners realized that the judge was the recipient of the communication, not its author. Not only was it clearly unfair to quiz Kavanaugh about a document he couldn’t see, the email (which dated to his period of service in the George W. Bush White House) was among those classified as confidential by the committee, and Booker broke Senate rules in publicizing and then saying he would release it.

Booker did his best to milk this for all it was worth, even saying that it was his “I’m Spartacus” moment, and was able to get the rest of the Democrats present to back him as part of their ongoing effort to make their complaints about process and access to documents the focus of the hearings. But while his backers were reportedly sending out fundraising appeals during the hearings, if Democratic activists were looking for a tough guy, Booker’s personality did not serve him well here. He is always eager to please and to seem agreeable, and his exchanges with Senator Chuck Grassley, the committee chairman, were often friendly. Nor did he demonstrate the kind of implacable hostility to the nominee shown by many of the Democrats. In a competition where being nice may be seen as liability, Booker fell short.

Harris had no such problems.

She first earned notoriety in the Senate last year by demonstrating open incivility bordering on bullying when she interrogated Attorney General Jeff Sessions and the national-intelligence chiefs. Bullying witnesses and cutting them off before they have a chance to answer is her modus operandi during hearings. She scored with the Left by abusing Sessions and Deputy Attorney General Rod Rosenstein and then gained more applause from the same sector by playing the victim who was being “silenced” when Senate Republicans attempted to intervene on behalf of those being interrogated.

The same qualities were on display during her questioning of Kavanaugh. But while, like the other Democrats, she never succeeding in outsmarting the judge, she was the only one to momentarily flummox him by bringing up the Mueller investigation.

She started with an impossibly general and specious query about whether he had ever discussed the Mueller probe with “anyone.” Kavanaugh was clearly perplexed by that, since she was referring not to narrowly legal questions but to even casual conversation about a leading topic of interest. He eventually agreed that he had. Harris next asked if he had done so with a member of the firm of Kasowitz Benson Torres, one of whose partners is President Trump’s attorney. When Kavanaugh, who couldn’t possibly be expected to know whether he had ever talked with one of the firm’s hundreds of lawyers, demurred, Harris then seemed to imply there was something fishy about this and cautioned him in a way that seemed as if she had executed a perjury trap. But when Kavanaugh asked if she had anyone in mind, it was Harris who played coy, in a manner that seemed to imply that she had some evidence of wrongdoing or inappropriate communications, even though there is no reason to believe she has any such proof at her disposal.

This earned her ecstatic reviews from liberal pundits who enjoyed her ability to wrong-foot the nominee and admired her sly, if entirely inappropriate, effort to somehow link him, without the slightest proof, to Trump’s legal problems. While Booker seemed to make the most of the Democrats’ procedural complaints, it’s difficult for even the most ardent supporters of the resistance to get too worked up about their efforts to lay their hands on every email the judge has ever sent. But by asserting, even by implication, that Kavanaugh might somehow be part of the Russia-collusion discussion, Harris gave liberal Democrats exactly the kind of red meat they crave.

Along with her snide and disrespectful prosecutorial tone, that made her the winner of the first day of the Kavanaugh primary.

Over the course of the long journey to 2020, the Kavanaugh hearings were just one small step toward the Democratic presidential nomination. Like most of the other 2020 hopefuls, Harris has yet to prove she’s truly ready for the scrutiny and the pressure of a presidential race. But as Democrats cope with the frustration of being in the opposition, her combative style provides them with the same element that endeared Trump to so many Republicans in 2016. Though there’s no guarantee she will run or outlast other possible candidates, her conduct in the Kavanaugh hearings was an important first step.



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