Booker Spartacus: Boot me from the Senate, but I'm going to violate rules to defeat Kavanaugh no matter what; Update: Grassley releases more; Update: Already cleared for release before stunt?

Will the Senate expel Cory Booker for “knowingly violat[ing]” rules on the release of confidential material — or just for being such a self-promoting empty suit? Claiming that a memo classified as confidential by the Judiciary Committee would blow the lid off Brett Kavanaugh’s confirmation hearing, Booker insisted that he’d risk his Senate career to expose it. The memo apparently dates back to the Bush administration and has something to do with racial profiling, at least according to Booker.


Maybe we can call the 2020 Democratic primary officially open now:

One Democrat, Sen. Corey Booker of New Jersey, threatened to release one of the documents on his own, prompting Republican Sen. John Cornyn of Texas to accuse Booker of “conduct unbecoming of a senator.”

The fight began when Senate Judiciary Committee Chairman Chuck Grassley, R-Iowa, said Democrats who have protested that some documents were not available had an opportunity to make their complaints beforehand but waited to do it publicly to delay the hearing.

Booker pushed back, blaming the process of having a private lawyer and former colleague of Kavanaugh, William Burck, vet the documents as the problem. Booker said he would release an email about racial profiling even, he said, if he could be kicked out of the Senate for violating rules.

“I come from a long line of Americans that understand what kind of civil disobedience is and I understand the consequences. So I am right now before your process is finished, I am going to release the e-mail about racial profiling and I understand that that — the penalty comes with potential ousting from the Senate. If Senator Cornyn believes I violate Senate rules, I openly invite and accept the consequences of my team releasing that e-mail right now,” Booker said.


Predictably, Booker’s colleagues — who spent Tuesday morning trying to shut down the hearings — supported his decision to violate the rules. “Count me in,” Dick Durbin declared, as did Maizie Hirono, while Richard Blumenthal tried for the nth time to raise a motion to adjourn and Sheldon Whitehouse rejected “the legitimacy of this hearing” and its rules.

John Cornyn didn’t take long to skewer Booker for grandstanding on behalf of his presidential ambitions:

Running for president is no excuse for violating the rules of the Senate or of confidentiality of the documents that we are privy to. 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 outrageous.

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.


It took a while for the committee to get past the bickering over this point, but not before Booker described his action as a “Spartacus moment.” It’s good to stay humble, I guess, but in a hearing that’s been far more of a gladiatorial arena than an educational process, it’s at least a somewhat relevant reference.

So what was the memo? It’s already been released and posted on Scribd, so it’s not confidential any longer. It’s a discussion among Bush administration officials, Kavanaugh included, in early 2002 about racial profiling, in part related to airport security. In fact, Kavanaugh wanted race-neutral security measures put in place, but acknowledged that an interim screening process might need to focus specifically on potential al-Qaeda members:

Another memo from August 2001 was on an entirely unrelated issue — compliance with the Supreme Court decision in Adarand, which stated that any race-based policies had to withstand “strict scrutiny.” Replying to another analysis of Department of Transportation programs, Kavanaugh predicted they would not withstand a challenge under Adarand:

Despite Booker’s suggestion in the hearing, none of this has to do with the kind of “racial profiling” that involves law enforcement and African-Americans. The only other topic raised was the demand to recognize Native Hawaiians as a protected minority for Small Business Administration programs, which Kavanaugh cautioned would run afoul of Rice v Cayetano and the Constitution if done “because of their race/ethnicity alone[.]” Kavanaugh worked on Rice while in private practice, and his side won at the Supreme Court in 2000, just a couple of years prior to this exchange.


None of these seem terribly problematic, although all three clearly qualify for executive privilege exceptions — internal discussions for policy questions. The first example might prove the trickiest to explain seventeen years after the 9/11 attacks, but with the anniversary coming up on Tuesday, perhaps not even so much so. That discussion took place just four months after 3,000 Americans got murdered by AQ terrorists, and many people wanted security tailored specifically to find other AQ and affiliated terrorists.

In other words, this was a case of manufactured outrage, one which demonstrates precisely why discussions under executive privilege are usually kept confidential. The result of Booker’s grandstanding will undoubtedly be, as Mike Lee warned in the hearing, that the Senate Judiciary Committee will get a lot fewer documents in the future and presidents will make much broader executive privilege claims to make sure of it.

Nevertheless, Booker got his “Spartacus moment,” for what it was worth. Or perhaps it’s more of a “Venus de Milo (or Modern Selfie)” moment, as demonstrated by sculptor Anna Uddenberg. I can’t think of a better image to represent this outburst today, or over the past week in this hearing. What an embarrassment.


Update: Looks like Booker won’t get another Spartacus moment:

After Booker released the emails, Grassley’s office formally made them public, along with dozens of other committee confidential documents that Democrats had asked to be released. It was not immediately clear whether their official release would affect Booker’s possible liability for making them public earlier.

Grassley might have been required to release them in order to allow committee members to discuss them publicly — and to allow Republicans to refute Booker’s earlier suggestion that this had to do with racial profiling of African-Americans by law enforcement. Still, it seems like a reward for bad behavior, which only incentivizes more of the same. Don’t expect presidents to trust the Judiciary Committee with these documents in the future.

Update: Even more embarrassing:

It’s just like Spartacus! If, er, the Romans were asking for Spartacus so they could let him go.

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