Evidence of Judge Brett Kavanaugh defending racial profiling was released by Senator Cory Booker on Thursday, September 7. Arguments abound defending or decrying Booker’s independent action, but few are discussing what caused the situation. Before deciding the legitimacy of an argument, one needs to see if the premise holds up to scrutiny.
The memo Sen. Booker chose to release was marked “committee confidential” by the Senate Judiciary Committee. The designation marked the document as “not for public consumption” and prevented Sen. Booker from questioning Kavanaugh on the contents of the memo. Sen. Booker attempted to get around this convenient excuse by releasing the document to the public, of which Kavanaugh is a member. Sen. Booker acknowledged his violation of Senate rules but cited public concern and Senatorial duty as his reasoning.
The email showed Kavanaugh’s past comments advocating the use of racial profiling to combat terrorism in America after 9/11. Even as a temporary measure, as dictated by the group suggestion, deliberate profiling by government decree has been traditionally seen as wrong. Kavanaugh, at his confirmation hearing for a seat on the United States Supreme Court, seemed to be leaning on Republican defenses and refusing to answer to any specific detail. The entire affair made a mockery of the process, regardless of who votes for whom. Sen. Booker never actually broke confidentiality, however, as the documents had been marked ready for release at 4:00 AM that morning.
The real concern for citizens should be that a Senate committee is claiming it can designate documents unrelated to national security as “committee confidential.” The rules regulating Senate committees only say that a committee is required to keep all related hearings, records, data, charts, and files separate and readily available as the property of the whole Senate. Any member of the Senate must have access to all records at any time. Forgetting public access for a moment, the Kavanaugh case is one where Republicans have restricted the rights of Democrats to view files until moments before the hearing. This is the first violation.
Another violation of Senate rule is the Republicans claim that they, as committee members, can mark files as committee confidential based on national security concerns or for the protection of American citizens. There is no such regulation. Only meetings and hearings are subject to those designations due to the live involvement of active cases and protected witnesses. Kavanaugh’s hearing has not been closed to the public from the beginning. Therefore, the Senate had already designated the files safe for public consumption.
Most importantly is the idea that the Senate works for the American people and is required to choose a Supreme Court justice who will uphold the best interests of Americans. The claim that Kavanaugh is unfit because of reason A or evidence B is irrelevant. The fact that these Senators are playing politics with a Supreme Court nomination is the greatest violation of trust evidenced by this whole spectacle. What we should be asking for is a do over with new politicians, because neither side has a good argument.