Newly released documents take center stage on Day Three of Kavanaugh hearing

Late Wednesday night, Sen. Booker finally got his chance to question Judge Kavanaugh. He asked the judge about his personal views on racial issues and his previous statements on affirmative action.

The senator also referenced an email from 2002 that he says showed Kavanaugh was open to racial profiling by law enforcement.

Booker: So it seems that you are OK with using race to single out some Americans for extra security measures because they look different. But you’re not OK with using race to help promote diversity and equal opportunity, and correct for past racial documented racial inequality?

Kavanaugh: Sounds like I rejected the racial profiling idea. What’s the date, what’s the date of the emails?

Booker: The date of the email is Jan. 17, 2002. And so have you ever suggested or expressed an openness to even a temporary circumstance — like this email seems to indicate — in an interim question, of using racial profiling? Have you ever suggested that, sir?

Kavanaugh: I’d like to see the email. 

Booker: I will provide the email, sir, to you. 

Kavanaugh: But it sounds from what you read like I rejected the concept. But I’ll look at the email.

Booker: It seemed to me that you were open to the concept, sir, clearly. 

This morning started with a heated exchange between Senate Judiciary Committee members because Booker announced he would make documents available to the public that were classified as committee confidential. It was a move backed by Democrats and scorned by Republicans.

Booker: I knowingly violated the rules that were put forth, and I’m told that the committee confidential rules have knowing consequences. And so, sir, I come from a long line, as all of us do as Americans, that understand what that kind of civil disobedience is, and I understand the consequences. So I am right now, before your process is finished, I’m going to release the email about racial profiling. And I understand that the penalty comes with potential ousting from the Senate. And if Sen. Cornyn believes that I violated Senate rules, I openly invite and accept the consequences of my team releasing that email right now. 

Cornyn: Running for president is no excuse for violating the rules of the Senate, or of the confidentiality of the documents that we are privy to. … That is irresponsible and outrageous. And I hope that the senator will reconsider his decision because no senator deserves to sit on this committee or serve in the Senate, in my view, if they decide to be a law unto themselves and willingly flout the rules of the Senate and the determination of confidentiality and classification. That is irresponsible and conduct unbecoming a senator.

Booker: Then apply the rule and bring the charges. Bring it.

Some have accused Booker of theatrics, saying the documents were already cleared for the public early Thursday morning. One such cleared email from 2003 brought a line of questioning from Sen. Dianne Feinstein on Kavanaugh’s position on Roe v. Wade. She quoted the senator:

Feinstein: “It is widely understood, accepted by legal scholars across the board, that Roe v. Wade and its progeny are the settled law of the land.” You responded by saying, and I quote, “I’m 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.” … So please, once again, tell us why you believe Roe is settled law, and if you could, do you believe it is correctly settled?

Kavanaugh: Roe v. Wade is an important precedent of the Supreme Court. It’s been reaffirmed many times. It was reaffirmed in Planned Parenthood v. Casey in 1992, when the court specifically considered whether to reaffirm it or whether to overturn it. … That makes Casey precedent on precedent. It’s been relied on. Casey itself has been cited as authority in subsequent cases, such as Glucksberg and other cases. So that precedent on precedent is quite important.

Chairman Chuck Grassley could allow the hearing to continue until midnight. And Friday, before a final vote, witnesses will come in to speak on behalf of or in opposition to Kavanaugh’s appointment.