Congress

Dianne Feinstein is being polite to Brett Kavanaugh. The left doesn’t like it.

Here’s California Senator Diane Feinstein questioning Judge Brett Kavanaugh

California Senator Diane Feinstein questions Supreme Court justice candidate Brett Kavanaugh at his confirmation hearing on September 6, 2018.
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California Senator Diane Feinstein questions Supreme Court justice candidate Brett Kavanaugh at his confirmation hearing on September 6, 2018.

California Sen. Dianne Feinstein has a longstanding reputation in the Senate for being collegial and bipartisan. As Democrats continue to grapple with how to halt Judge Brett Kavanaugh’s confirmation to the Supreme Court, she has made clear she’s not changing course just because she — and other Senate Democrats — are now taking political heat.

To her 2018 reelection opponent and other liberal critics, Feinstein’s unfailing politeness — on display during Kavanaugh’s hearing — is unforgivable.

“Ridiculous,” tweeted Brian Fallon, executive director of the left-of-center group Demand Justice, after Feinstein apologized to Kavanaugh for the steady stream of protesters that interrupted his remarks on Wednesday.

“Are you kidding me?” Feinstein’s Democrat challenger, California state Sen. Kevin de León, asked in an email to supporters, before making a fundraising pitch for his underdog campaign. He also tweeted at Feinstein to support the protesters and “stand with them ... not apologize for them.”

The 85-year-old Feinstein isn’t backing down, however.

During a break in the hearing on Wednesday, the veteran lawmaker reiterated her disapproval of the protests, telling McClatchy that while she supports people’s right to free speech, she thinks it’s important to maintain a respectful tone in the hearing room.

“The purpose of these protests is to disturb, and the purpose of the disturbance is to stop the testimony, and the testimony clearly has to continue on,” Feinstein said. “So we don’t have a lot of choices.”

President Donald Trump nominated Judge Brett Kavanaugh to replace Supreme Court Justice Anthony Kennedy on Monday night. Born in Washington, D.C., Kavanaugh has served as a judge on the U.S. Court of Appeals for the D.C. Circuit since 2006.

The approach underscores her devotion to the Senate’s traditions on decorum, even in this age of hyper-partisanship. It also, however, suggests a lack of concern about de León’s challenge from the left. Feinstein enjoys a double-digit lead in the polls as well as a yawning financial advantage in the Democrat-vs-Democrat race.

Despite calls from activist groups for Democrats to take a stand against Kavanaugh as soon as President Trump nominated him, Feinstein has maintained her longstanding practice of not announcing her opposition or support for a nominee until after the confirmation hearing. Her criticism of Kavanaugh’s record, however, offers little doubt that she will vote “no.”

Feinstein also drew flak this week for thanking Kavanaugh “for being so forthcoming” in his responses to her questions on Wednesday, a comment White House Deputy Press Secretary Raj Shah promptly Tweeted out.

And, three days into the hearings, she has remained mostly silent as her Democratic colleagues have interrupted and protested the proceedings, complaining of Republicans’ refusal to divulge all of Kavanaugh’s documents from his time working in the George W. Bush White House.

Feinstein’s sharpest comments came Wednesday morning, when she chimed in to reinforce Democrats’ objections to Republicans’ decision to keep certain Kavanaugh documents out of public view. Those include one email, leaked to the New York Times Thursday, that reveal Kavanaugh once questioned whether Roe v. Wade should be described as “settled law.”

“This is without precedent,” she affirmed. In the closest she tipped towards impolite, Feinstein warned that the partisan use of the “committee confidential” label “to some extent ... becomes a kind of a crock.”

Feinstein told McClatchy on Wednesday that she didn’t believe she needed to add her voice to the complaints voiced by her colleagues early in the hearing because they were already addressing Democrats’ concerns.

“I didn’t think more was necessary,” Feinstein said.

The leading Democrat on the committee did, however, offer an impassioned defense of her Democratic peers in her opening remarks, even as she expressed her discomfort with the contentious nature of the hearing.

I think you have to understand the frustration on this side of the aisle,” Feinstein said, nodding towards Grassley. “Understand where we’re coming from, it’s not to create a disruption, it’s not to make this a very bad process, it is to say, ‘Majority, give us the time to do our work.’”

De León and other critics have derided Feinstein’s “polite, country club politics” as ineffective.

Others say civility is just part of Feinstein’s style — and shouldn’t necessarily be seen as a negative.

“She’s an elder statesperson,” said University of Massachusetts Amherst Professor Sheldon Goldman, who studies judicial confirmations. “It’s a different role” than some of the younger Democrats on the committee, several of whom are considered potential 2020 presidential contenders.

Even has she faces criticism from the left, Goldman noted that Feinstein is “not playing to gallery.”

Russell Wheeler, an expert on the federal courts and visiting fellow at the Brookings Institution, said that’s reinforced his impression that “she isn’t in an awful lot of trouble,” in her reelection race.

While some activists have called on Democrats to walk out of the hearings, leading Democrats opted against that strategy, reasoning that Republicans could simply change the rules and proceed with the hearing, with no Democrats present to ask questions. Instead, Feinstein and other leaders have focused on pinning Kavanaugh down on some of his more controversial positions on abortion, corporate regulation and gun control.

“The truth of the matter is the Republicans have the votes, and there’s really no obstacle to (Kavanaugh) being confirmed,” Goldman said.

Feinstein’s role as the committee’s lead Democrat also creates an incentive to maintain a working relationship with Grassley, the Republican chairman from Iowa. “She’s going to have to work with him as long as he’s chair,” noted Wheeler.

If Democrats manage to win a majority in the Senate in the near future, which is unlikely in 2018 but possible in 2020, Feinstein also risks being on the receiving end of tactics activists are now urging her to employ.

Grassley affirmed in an interview that he and Feinstein “have a very good working relationship,” despite the fact that they “disagree on a lot of things.”

They are in agreement on at least one thing, however, according to Grassley: “We ought to have some peace and quiet so the 300 (million) American people, other than the ones protesting, can listen” to the Kavanaugh hearing.

Kate Irby: 202-383-6071; @KateIrby
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