Alan Dershowitz: Time to fill the gaping hole in the Constitution
The Spartacus moment in Senate fuels troubling trend of theatrics
It was a moment that would have made actor Kirk Douglas blush. During the hearings into the Supreme Court nomination of Brett Kavanaugh, Cory Booker (D-N.J.) announced that he would defy the Senate Judiciary Committee by releasing a nonpublic "committee confidential" document, regardless of the consequences. "This is about the closest I'll probably ever have in my life to an 'I am Spartacus' moment," he declared, recalling the memorable line spoken by Douglas in the 1960 film.
First, and foremost, the key to having a "Spartacus moment" is not to declare your own Spartacus moment. Second, you actually have to expose yourself to a lethal threat. It turned out that the document in question already had been released and Booker was informed that it was public before the hearing. However, Booker was right on one point.
The hearing procedures were questionable and this really was a Spartacus moment. It was just not the one Booker thought it was. He and other Senate Democrats have had a legitimate gripe about the unusually high percentage of material withheld from review and the unilateral use of "committee confidential" markings to control documents. It is troubling to have a largely unknown private lawyer removing hundreds of thousands of documents based on a privilege assertion that has not actually been formally made by the White House.
Committee Chairman Chuck Grassley (R-Iowa) also had a good point about the Democrats failing to ask for the release of documents and possibly engineering the confrontation in open committee. Yet, in the end, Democrats had the better case about the hearings being substantially different from past hearings in the method and the scope of withheld material. If Democrats had the better argument, it was lost in the atmospherics of the hearing. Indeed, for those lost in the theatrics, the story of Spartacus is instructive as suggested by Booker.
In history, gladiator turned rebel Spartacus was pursued by not one but two Roman senators turned generals, Marcus Licinius Crassus and Gnaeus Pompeius Magnus, who wanted to be the next consul of Rome. The point of the war was not just defeating Spartacus and his gladiator army but to be the one credited with defeating him. Crassus succeeded and proclaimed his victory at Capua. Magnus, however, claimed the honor by reaching Rome first, illustrating the danger of Crassus stopping to crucify 6,000 prisoners on the road to Rome as a statement.
The Kavanaugh hearings were like watching a contest to be consul of Rome. Booker and Kamala Harris (D-Calif.), who sat next to each other, are viewed as leading contenders for the 2020 Democratic presidential nomination. Like their Roman predecessors, they knew that whoever slayed or injured Kavanaugh would be a celebrated Democratic hero. Harris effectively accused Kavanaugh of perjury, collaboration against special counsel Robert Mueller, and other unsupported misdeeds. Not to be outdone, Booker jumped up to declare himself Spartacus.
The problem is that someone actually did kill Spartacus. In this case, Kavanaugh walked from the hearing on his own power with a presumed Senate majority of support. It is certainly true that Republicans prevented access to information that might have undermined him, but neither Booker nor Harris made a convincing claim as future consul of the Democratic Party. One moment, however, did leave Booker looking a bit like a consul wannabe. In an uncharacteristic move for the usually mild mannered senator, Booker had a confrontation with reporter Byron Tau, who asked if his Spartacus moment was a political stunt. Tau said Booker told him he was "violating the Constitution by being in his way."
That comment was unlikely meant as a real threat, as it is neither within the character nor authority of the senator. Presumably, Booker was referring to the fact that he was on his way to a vote and the speech and debate clause under Article I states that members of both Houses of Congress "shall not be questioned in any other place" when going to and from Congress. However, this is meant to deter the government, not reporters, which is why there is an exception case of "treason, felony and breach of the peace." Given the grilling over the uncertain constitutional interpretations of Kavanaugh and support of imperial presidential authority, it was a sharply discordant moment. If you are Spartacus, you should not be denouncing reporters like a Roman consul.
Booker later went on television, trying to reinforce his Spartacus bona fides. He struggled to establish that he was actually breaking Senate rules by releasing other documents. He has now released more than 20 documents uncleared by the Senate Judiciary Committee. It was like claiming to be a retroactive Spartacus after the battle. That could subject Booker to admonishment after a Senate Ethics Committee investigation, still far short of staging crucifixions between on the way to Rome.
Putting all of the theatrics aside, the Kavanaugh hearings left a troubling and damaging precedent for a process that already lacked substantive content. I have been a critic for years of the modern confirmation hearing, which is largely about senators rather than nominees. The hearings drained what little substance remained in the process. The unilateral denial of documents and theatrics of the opposition left the hearings as little more than a stunt by both parties. There was not a Spartacus to be found but, instead, an overabundance of would be Roman consuls.