Dana Milbank: Trump is quite literally choosing his judge and jury

Supreme Court nominee Brett Kavanaugh, standing with Senate Judiciary Chairman Chuck Grassley, R-Iowa, arrives at the Senate Judiciary Committee on Capitol Hill, Tuesday, Sept. 4, 2018, in Washington, to begin his confirmation hearing to replace retired Justice Anthony Kennedy. (AP Photo/Andrew Harnik)

Washington - Brett M. Kavanaugh’s Supreme Court confirmation hearing is scheduled to last all week. Judiciary Committee Chairman Charles E. Grassley lost control after just 13 words.

"Good morning," he said. "I welcome everyone to this confirmation hearing on the nomination of —"

"Mr. Chairman?" interrupted Sen. Kamala D. Harris (Calif.), a junior Democrat on the committee and prospective presidential candidate.

She protested that the administration had dumped 42,000 pages of Kavanaugh's writings the night before, leaving no time to review them.

"You're out of order," Grassley informed her.

Sen. Amy Klobuchar, D-Minn., another prospective presidential contender, jumped in. "This hearing should be postponed," she said.

Grassley, ignoring her, welcomed the nominee's friends and family.

This time, Sen. Richard Blumenthal, D-Conn., interrupted, saying the lack of documents "turns this hearing into a charade and a mockery of our norms. … I therefore move to adjourn."

Demonstrators in the audience shouted echoes:

"This is a mockery and a travesty!"

"Adjourn the hearing!"

Republicans called for order. Grassley tapped his gavel ineffectually. Police removed protesters.

There has never been a disruptive spectacle like this at a Supreme Court confirmation hearing. But then there has never been a Supreme Court nomination like this.

Kavanaugh may not become the most conservative member of the court, but his background suggests he would be the most partisan. Working for Kenneth W. Starr in the 1990s, he was involved in the Vincent Foster and Monica Lewinsky probes, proposing an explicit line of questioning for President Bill Clinton with graphic queries about genitalia, masturbation, phone sex and oral sex. And as a young lawyer under George W. Bush, Kavanaugh was involved in Bush v. Gore, the probe of Clinton's pardons and legal decisions about torture.

Hence the importance of the "documents." Democrats say the committee received only 7 percent of Kavanaugh's White House documents — and some of those have been altered, while half cannot be discussed publicly.

Why? They would likely reinforce what is already known about Kavanaugh as a nakedly partisan appointment, solidifying the court's transition from a deliberative body to what is effectively another political branch.

This transition began with the Robert H. Bork and Clarence Thomas hearings, and accelerated during the Bush v. Gore ruling that gave the White House to a Republican president and the Citizens United ruling that advantaged Republicans. It climaxed when Senate GOP leader Mitch McConnell refused for a year to hold hearings on President Barack Obama's Supreme Court nominee Merrick Garland. McConnell, having essentially put the Supreme Court on the ballot, then changed procedures to have President Trump's nominees approved by a simple majority — thereby ending any possibility of consensus.

And now Senate Republicans are pushing to have Kavanaugh confirmed on a party-line vote before the public knows what he did in the White House. This will have him seated on the high court in time to consider whatever challenges emerge from Trump's legal problems. Trump is quite literally choosing his judge and jury.

Yet Kavanaugh, like his predecessors, said without irony Tuesday that "the Supreme Court must never — never — be viewed as a partisan institution."

Among the Kavanaugh documents that have been released: an email sent to him in 2002 by a White House spokeswoman about a column I was writing. "Dude, you've got trouble," it says, informing Kavanaugh that I wanted to discuss Clinton pardons and his work for Starr.

Kavanaugh's two-word reply: "uh oh."

Kavanaugh didn't talk for the piece, which argued that "a cynical view of Kavanaugh's actions would be that he bases his legal reasoning on his conservative views — that he supports broad powers for a Republican president and circumscribed powers for a Democratic president."

What has emerged about Kavanaugh — particularly his vulgar plan to humiliate Clinton — reinforces that cynical view. This is why Kavanaugh's defenders don't want the documents to come out — and why Democrats, and their Greek chorus in the audience, made it their focus Tuesday.

The protest continued steadily for 75 minutes, then intermittently. Dozens were arrested. A midday Republican tally claimed 63 Democratic interruptions and 80 complaints about documents — and still hours to go. Sen. John Cornyn, R-Tex., decried “mob rule” and said Democrats would be “in contempt” if the hearing room were a court.

But five hours into the hearing, hecklers still shouted:

"Release all the documents!"

"What are you hiding?"

A weary Grassley, near day's end, vowed to regain control of proceedings. "If you don't run the committee," he said, "it runs you."

Dana Milbank | The Washington Post

Dana Milbank is a Washington Post op-ed columnist. He sketches the foolish, the fallacious and the felonious in politics. Twitter, @Milbank.