U.S. Sen. John Cornyn, R-Texas, clashed with U.S. Sen. Cory Booker, D-New Jersey, during U.S. Supreme Court nominee Brett Kavanaugh’s Judiciary Committee hearing Thursday over the release of confidential records.
“I’m knowingly violating the rules,” Booker said to U.S. Sen. Chuck Grassley, R-Iowa, chairman of the Senate Judiciary Committee. “Sen. Cornyn’s called me out for it. Sir, I’m saying right now that I’m releasing ‘committee confidential’ documents.”
Cornyn, the second-highest ranking Republican in the Senate, pushed back after Booker, a potential 2020 contender for president, used his name. Cornyn said no one should be allowed to serve as a senator if he or she flouts the Senate’s rules, which risks expulsion from the chamber.
“Running for president is no excuse for violating the rules of the Senate or of confidentiality of the documents that we are privy to,” Cornyn said. “This is no different from the senator deciding to release classified information that is deemed classified by the executive branch because you happen to disagree with the classification decision. … That is irresponsible and conduct unbecoming a senator.”
It turns out, though, that the documents Booker released — which revealed Kavanaugh’s view on some racial issues — had already been cleared the night before, according to Republicans, and were no longer confidential during his back-and-forth with Cornyn.
It was among episodes of Democrats and Republicans battling it out during the third day of confirmation hearings on Thursday, as emails from Kavanaugh during his time as a White House lawyer under President George W. Bush became public this week.
A lawyer for Bush vetted and has turned over thousands of documents to the Senate Judiciary Committee about the Supreme Court nominee. Although they were labeled confidential, several documents were provided to The New York Times by an unknown person late Wednesday. In one document, Kavanaugh challenged the accuracy of deeming the Supreme Court’s landmark Roe v. Wade abortion rights decision to be “settled law of the land.”
Kavanaugh was reviewing a draft opinion piece that had stated “it is widely accepted by legal scholars across the board that Roe v. Wade and its progeny are the settled law of the land.”
Kavanaugh proposed deleting that line, writing: “I am not sure that all legal scholars refer to Roe as the settled law of the land at the Supreme Court level since Court can always overrule its precedent, and three current Justices on the Court would do so.”
He was presumably referring to then-Justices William Rehnquist and Antonin Scalia, along with Justice Clarence Thomas, conservatives who had dissented in a 1992 case that reaffirmed Roe, Planned Parenthood v. Casey. The court now has four conservative justices who might be willing to overturn Roe — Justices Thomas, John C. Roberts Jr., Samuel Alito and Neil Gorsuch — and if confirmed, Kavanaugh could provide a decisive fifth vote.
Still, Kavanaugh’s email stops short of saying whether he personally believed that the abortion rights precedent should be considered a settled legal issue.
Democrats have complained about relying on Bush’s lawyer rather than the National Archives to decide what to provide to the Senate, one part of a larger fight over how many documents from Kavanaugh’s years in the Bush administration the Senate and public should be able to examine before his confirmation vote.
Late Wednesday, in the context of some of the documents, White House spokesman Raj Shah condemned the disclosure of “committee confidential” documents as a violation of Senate rules.
Other documents provided to The New York Times included one showing that in September 2001, after the terrorist attacks, Kavanaugh engaged with a Justice Department lawyer about questions over warrantless surveillance. At the time, that lawyer wrote a memo an inspector general report later portrayed as the precursor to the Bush administration’s warrantless surveillance program.
American-Statesman staff writer Johnathan Silver contributed to this report with additional material from The New York Times.