Today, Explained - Confirmation screamings

Episode Date: September 4, 2018

Brett Kavanaugh’s confirmation hearings for the United States Supreme Court began today. Slate's Dahlia Lithwick say they were unlike any she'd seen before. Learn more about your ad choices. Visit podcastchoices.com/adchoices

Sarah Cliff, you have been on maternity leave from Vox, where you usually report. Yes. And you are holding a baby named Max. Yes, this is my baby. It'd be weird if it was someone else's. It's so weird. But we're not here to talk about babies. No, we are not.

We're here to talk about Quip electric toothbrushes. Yeah, babies don't have teeth. Yeah. But I have a Quip electric toothbrush. That you got at getquip.com slash explained? I did. Perfect. So, Dahlia Lithwick, you report on the Supreme Court for Slate.

You host the Amicus podcast. We were all watching, following along today, and I kept seeing people who report on the Supreme Court saying they'd never seen anything like this before, the Kavanaugh hearings today, the opening of the Kavanaugh hearings. Did you feel the same way? Yeah, we actually at Slate had an under-over on how many interruptions, how many protesters would get dragged out of the room. And I said, oh, you know, the usual is like three or four. And we hit that in the first two minutes. Do not vote on him. No, she was not warned.

Don't take away my health care. The amount of shouting over the chair. We cannot possibly move forward, Mr. Chairman. I extend a very warm welcome to Judge Kavanaugh, to his wife, Ashley. And I think actually, interestingly, today was the first day that I really saw the Democrats kind of coordinating. It looked as though they really had thought through as a collective how they were going to oppose this. And that also felt really different. But no, I guess this is my sixth Supreme Court confirmation hearing, and I've never seen anything like this morning. So in addition to a massive amount of protests that continued throughout the day in the hearing, you saw Democrats speaking over Senator Grassley, who was running the hearings.

What were they saying and why were they interrupting him and why did they open with such a strong sort of collective force? Well, I think, you know, it was ostensibly about the documents. They got a massive document dump last night at 5 o'clock. I think at one point the claim was made they literally would have had to be able to read 7,000 pages an hour in order to get through all of it. No one could prepare and review 42,000 documents in one evening. We know that no matter how much coffee you drink. What are in these documents? I mean, the Democrats spent so much of the morning

demanding an extension, an adjournment, so they could learn what was in these documents. Do we know? We don't know what is in all the documents. Some of them are literally being vetted right now. I think that Senator Durbin said that huge volumes of them are from the time that Kavanaugh served as staff secretary in the Bush administration. And that means that he was summarizing documents. And there is a question about whether that was just ministerial. You know,

it doesn't matter because he was just like a guy pushing papers across the president's desk, or if he was deeply engaged in policy conversations, and we'd want to know, it doesn't matter because he was just like a guy pushing papers across the president's desk or if he was deeply engaged in policy conversations and we'd want to the extent it's being vetted. It's being vetted by Bill Burke, a Republican lawyer who actually represents some of the folks who work for the president and who worked for Kavanaugh at some point. I think the argument is it just feels like the fix is in. And if you want us to reasonably assess the nominee, let us see his record. And I think that, you know, embedded in that complaint, there are a lot of other complaints about this is a rushed process. And this is somebody who has written extensively about presidential power and issues that inflect directly on Donald Trump and his legitimacy, and whether probes into Donald Trump can go forward. And I think all of that got framed as a complaint about the process.

Senator Blumenthal at one point said that There will always be a taint. There will always be an asterisk after your name. Appointed by a president, named as an unindicted co-conspirator after the vast majority of documents relating to the most instructive period of his life were concealed. The question will always be, why? We had this conversation a year ago, you may remember, around Neil Gorsuch, and I think there was a similar claim. Again, the argument was at the time, look, you blocked Merrick Garland, then you picked someone and then rushed it through,

and there is forever going to be a taint because this looks like a stolen seat. So some of that rhetoric is familiar. I do think that this time we didn't have some of the weirdness that we had around the Gorsuch hearings where we heard a lot of the Democrats saying this whole process is tainted this sucks but let's go ahead and do it anyway at least this morning we saw what looked like the beginning of maybe we just walk out of the room I don't know we maybe we just adjourn maybe we just walk out of the room. I don't know. Maybe we just adjourn. Maybe we postpone. And so I think it looked a little bit more as though there was a concerted message that said, this is so tainted that we won't participate. But then as we saw, Democrats participated. Yeah, then they just went along as business as usual.

Yeah. So what happened once the dust settled? Well, I think once the initial sort of back and forth of, I think, Senator Blumenthal and Senator Harris and Senator Klobuchar, a bunch of the Democrats really were calling for a postponement or adjournment. Mr. Chairman, if we cannot be recognized, I move to adjourn. The American people. Mr. Chairman, I think there was a micro battle about whether that could happen if you're not in an executive session. Grassley essentially overruled them. And then, as you said, they went on to the merits. And really the whole day went to opening statements. It was clear that Grassley was like, I mean it when I say you only have 10

minutes, and then they would go on for, you know, 25. Endless opening statements. Oh, my gosh. Yeah, it was really, I think Cory Booker was like, doing some kind of, at some point, performance art. I mean, it was really, really a lengthy statement, but I think it goes to, and I would say this, in my view, is one of the themes of the day, is that Democrats, one way or another, are trying to say this isn't normal. I think that was Senator Klobuchar's whole theme. It was Dick Durbin's theme. None of this't normal. I think that was Senator Klobuchar's whole theme. It was Dick Durbin's theme. None of this is normal. And whether you say it's not normal because Donald Trump has

selected the person who's going to someday sit in judgment about issues that have to do with his presidency or with obstruction claims and campaign finance claims, or whether it's not normal because Anthony Kennedy is being replaced with a pretty credible right wing, probably to the right of Justice Alito. Jurists, I think the claim on the Democrat side of the room was like, nothing about this process is normal. And interestingly, the kind of in the call and response, what you heard from Republicans was, this is totally normal. It didn't bother anybody for Clinton to nominate Breyer while he was under investigation. We actually did it.

And I think in a weird way, the fact that the Bob Woodward excerpts explode into the middle of this allows you to make your own determination of how normal this whole thing really is. It was interesting from the Republicans you had, like Jeff Flake, come out and just talk about how much he appreciated that Brett Kavanaugh liked sports for what seemed like 10 minutes. We both played football back in the day. I'm sure you're looking forward to this weekend, not just when these hearings are concluded, but when the Redskins and Cardinals play on Sunday. I learned that you've run the Boston Marathon twice. I wonder if the ABA took that into account when they gave you a favorable rating. I'm not sure what that says about your soundness of mind myself.

But then Lindsey Graham spent almost all of his time, I feel like, talking about Democratic hypocrisy. The whole argument is you can be a conservative Republican president, but you got to nominate a liberal to be fair to the country. That's absurd. Where do you think Ruth Bader Ginsburg came from? She was the general counsel of the ACLU. Wonderful person. What groups do y' Bader Ginsburg came from? She was the general counsel of the ACLU. Wonderful person. What groups do y'all use to pick from?

This is shaping up to be the hypocrisy hearing. Didn't mention anything about Merrick Garland, whose shadow still feels like it looms in these confirmation hearings. Do you think it does? Is some of this about how the Republicans stole an Obama nomination? Yeah, I think it does affect very much this question of, this is just about power. This is just about politics. And if you really listened to a lot of, you're right, I guess we should just call them lengthy speeches instead of opening statements. If you really listened, one of the things that echoed throughout was this conversation about how much is this just about raw power? How much is this about Senate Republicans just getting to do what they want, screw the rules and the norms, because that's what they do. And a kind of pushback from Republicans saying, no, this is about dignity and civility and this deliberative body.

So it's a really, it's a kind of invisible thread that goes through it. You're quite right. But it's also, I think, the source of just great unexpressed frustration on the Democrat side and great unexpressed kind of exaltation on the Republican side that in the end, this kind of is just about power. Dolly, the Kavanaugh hearings are supposed to go until Friday. And I want to know if we're actually going to learn anything about this man, but I'm going to do it after a quick break. So Sarah Cliff, Vox reporter, maternity leave, you have your baby Max here. He's wonderful looking. It's pretty cute. You decided while on maternity leave to get a new electric toothbrush, a Quip electric toothbrush. I did.

At getquip.com slash explain. Yeah. So I was having some toothbrush drama, which is not a thing. I thought whatever happened in my life. So I had a different electric toothbrush. And I don't know what happened to it, but it just started turning itself on like it was possessed at like 2 in the morning. It would start vibrating and sounding like someone oh sorry max is getting a little he's upset remembering this um because he

was he was waking him up at two he's waking him up too and he's a baby um so anyways it would go off at like two in the morning and just start vibrating and um you know i was already getting woken up by him like three times a night i did not need a toothbrush. That was also going to wake me up. Right on. So you went to the thing. So the next morning, after I had one night where it went off three times and I hid it in my sock drawer to try and muffle the noise

and had this possessed toothbrush. So the next morning, I went on getquip.com and... Slash explained. Slash explained. Some free refills. Some free refills. Yeah, yeah, yeah.

And while he was probably doing this i ordered a toothbrush mr chairman senator feinstein members of the committee I look forward to the rest of the hearing and to answering your questions. I am an optimist. I live on the sunrise side of the mountain, not the sunset side of the mountain. I see the day that is coming, not the day that is gone. Is there a chance that we actually learn anything about this Trump nominee this week? You know, it's a good question. I think this morning there was so much furious speechifying. It's hard to imagine that Kavanaugh's going to get a word in edgewise. That said, I will say that Senator Blumenthal, Senator Whitehouse, Booker Harris, Senator Hirono are really good and deft cross-examiners. And I think they laid out the markers of the kinds of things they're going to ask about.

I think there will be, whether Judge Kavanaugh chooses to answer, I think there will be, in the coming days, a pretty exhaustive conversation about his ideas about presidential power, his ideas about campaign finance law, his ideas about campaign finance law, his ideas about speech. Certainly there will be, I think, at least an attempt to probe his views on abortion and whether Roe is, quote, settled law. So I think there will be deft attempts to pin him down. And I think what you heard from the Republican side today was 200 versions of he's not going to answer. And is there a chance that the Democrats

get to find out some of what they're not seeing in these documents by just talking to the man himself? Well, that was interesting. It was one of the things that Grassley kept promising in his attempt to mollify Democrats. He kept saying, you know, OK, maybe you didn't get the documents, but you can certainly ask him the questions. And then intriguingly, within moments of asserting that, he also said, but he doesn't have to answer anything because of the so-called Ginsburg rule. And so I think there's a little bit of a pincer happening here where you don't provide the documents and then you say he also doesn't have to answer. And I think that was very, very much set up today.

And the Ginsburg rule so-called for how Ruth Bader Ginsburg's hearings went? Yeah, I think that there was, and it's not entirely fair, there's a story told that Ginsburg said she would give no hints and no tips about how she would vote in future cases. It would be wrong for me to say or to preview in this legislative chamber how I would cast my vote on questions the Supreme Court may be called upon to decide. But then she went on to talk about abortion and her, you know, views of abortion law at great length. That rule has been more or less distorted to mean nobody should have to talk about any case that could conceivably come before them. In fairness, I think that John Roberts answered pretty thoroughly.

I think that Sam Alito answered pretty thoroughly. But the trend has become to offer up less and less information about anything that could conceivably appear before you as a justice. And ultimately, what Kavanaugh says or doesn't say won't really matter towards his confirmation in the Supreme Court, correct? It doesn't look that way. I think to the extent that all eyes were on Susan Collins and the hope that the voters of Maine could push her to really use Roe v. Wade as a litmus test. She seems to have signaled that she's fine with where Kavanaugh says he is on reversing Roe. And the whole sort of mystical formula of saying, you know, something is, quote, settled precedent or is good law, doesn't even tell you that much about how someone would rule. So it's such a rabbit hole to try to

say that that is the single-handed determinant of one senator's vote. And I think she's pretty ably suggested that she can tell the voters at home that she is sanguine about the fact that rule will be good law, and she's not really in play. I wonder, you know, looking at this super contentious morning of hearings followed by sort of what we're used to seeing, but there was lingering tension throughout the day. I mean, Cory Booker opened up his statement with this huge preamble. Mr. Chairman, Chairman Grassley, I hope you do not think earlier this morning that in any way I was questioning your integrity or your decency. I was appealing to it earlier before.

Do you think something changed today? Might something that happened in that room have implications in the midterms or have implications the next time there's a Supreme Court nominee or a hearing? Are these things just going to get more contentious to the point where we don't discover anything about these people in them anymore? What I see today is a real fracture of, we talked about norms, we talked about civility, we talked about the Senate for a long time as being, you know, the saucer that slowly cools off the hotheads in the House. And today, I think the gloves are off. Today is the most partisan in terms of imputing

bad faith on both sides, senators on both sides saying, you know, on the one hand, a lot of Republicans saying, oh, you know, Democrats are all just running for president. They want their soundbite on TV. Democrats saying that. Sorry about that. Are you busy today, Dahlia? I'm sorry that it keeps beeping. It's OK. Yeah, you're saying Democrats. Democrats sort of imputing really bad faith on the part of Republicans in the Senate, suggesting that, you know, the White House is deliberately obstructing that that Senator

Grassley is deliberately hiding documents. I cannot think of a time that I've seen that level of presumptions of just really bad faith that are openly stated. And maybe the most interesting, it was perplexing, but Ben Sasse, Senator Sasse, talking about, you know, that Congress doesn't do its job and then everything gets, you know, foisted over to the Supreme Court. It's predictable that every confirmation hearing now is going to be overblown, politicized circus. And it's because we've accepted a new theory about how our three branches of government

should work, and in particular, how the judiciary should work. Kind of the level of almost self-abnegating, of self-blame, of, you know, man, people really, really hate us, that undergirded a lot of the discussion today. I thought that was really interesting. You know, it almost seems as though both sides know that they've passed some kind of brink and that public confidence is so lacking and people in the galleries are screaming and getting hauled out. And it just has this feeling of, you know, all this time we wanted to pretend that the Senate was different and that it was decorous and that these relationships really will carry the day. I think that's why you saw Senator Booker

importuning Senator Grassley not to be mad. But there's a sense in which something really cracked. And I think that's only going to get worse in the coming days. Dahlia Lithwick is the host of the Amicus podcast from Slate, where she also covers the Supreme Court. I'm Sean Ramos-Firm. This is Today Explained. you know what's cool about the quip is that you can take the battery out because it's a regular battery. Yes. So if it ever went crazy and was possessed, instead of performing an exorcism in the sock drawer, you could just take the battery out and it would be quiet. Yeah, that would have been a nice feature.

It didn't exist. I haven't had to do it yet because my Quip has not gone crazy yet. Kara Swisher, you're here all week talking about your podcast in the Vox Media Podcast Network, the Recode Decode Podcast. I am. I'm here in D.C. with you. It's been around for a minute, but how should we introduce it to today? Explain listeners who might not have heard it before. Well, we should say it's in-depth interviews with key players in tech, media and politics.

That's our little thing. Beautiful. And then we do actually interview key players in tech, media, and politics. So who's a key player we should hear about? So this week I talked to Amakan Delrahim. He is at the Justice Department. He's the Assistant Attorney General. And he's the one who tried to block

the AT&T-Time Warner merger and has lost and is appealing. And he talked about that a lot, more than he probably should have. But there he did. And he talked about sort of the attacks that he got because people thought he was carrying water for President Trump, who hates CNN. He talked about where antitrust was going. You know, he'll have a lot of say about where if, say,

Google bought something big or Facebook did and stuff like that. So he's a really interesting and engaging lawyer for a lawyer. Wonderful. Okay. And people can find Recode Decode wherever they find their podcasts? Yes, indeed.