Booker releases Kavanaugh documents but GOP insists they were already cleared

The showdown dominated questioning of Kavanaugh in the Senate Judiciary Committee on a ill-tempered day that raised new questions about whether President Donald Trump's pick views the right to abortion as "settled law" but did not appear to contain major errors that could thwart his likely confirmation in the Republican-controlled Senate.

In a striking political gambit, Booker, backed up by Democratic Sen. Mazie Hirono of Hawaii, released emails -- which had been designated as "committee confidential" -- that reference Kavanaugh's position on racial profiling and thoughts on Roe v. Wade dating from his time as a White House official under President George W. Bush.

Booker, who as a potential 2020 presidential candidate has an incentive to make a splash in the hearing, said he took the action as an act of "civil disobedience."

"I understand the penalty comes with potential ousting from the Senate. ... I openly invite and accept the consequences of my team releasing that email right now," Booker said.

"This is about the closest I'll probably ever have in my life to an 'I am Spartacus' moment," he added.

Republican Sen John Cornyn warned Booker that releasing documents marked "committee confidential" would break Senate rules.

"Running for president is not an excuse for violating the rules of the Senate," the Texas Republican said.

Later Thursday, Bill Burck, a lawyer who oversaw the process of providing Bush administration documents, undercut Booker's grand gesture, saying that the material in question had been cleared on Wednesday night at the request of the senator's staff.

"We were surprised to learn about Senator Booker's histrionics this morning because we had already told him he could use the documents publicly. In fact, we have said yes to every request made by the Senate Democrats to make documents public," Burck said in a statement.

The office of Judiciary Chairman Chuck Grassley, an Iowa Republican, also said that senators, including Booker, were notified "before they spoke today" that the restrictions on the documents had been waived.

Booker however insisted he was in the right, saying he read from the documents aloud in the hearing on Wednesday night long before they were cleared at around 4 a.m. Democrats have repeatedly complained that the White House is withholding tens of thousands of documents relevant to the nomination and wants many more that have been provided released to the public.

The New Jersey senator also said he doubted Cornyn would follow through through on his threats to enforce Senate discipline against him.

"I think he's like a lot of bullies are: a lot of talk no action," Booker said.

The schoolyard taunts underlined how the hearing, ahead of what appears to be Kavanaugh's likely confirmation, has become another battlefield in the vicious partisanship and complete lack of trust between the parties that is wracking Washington at a critical moment of the Trump era

Booker's intervention followed a set of glowing headlines for another potential 2020 Democratic presidential candidate on the Judiciary Committee, Sen. Kamala Harris of California, who late Wednesday night appeared to discomfort Kavanaugh with a series of questions designed to find out with whom he had discussed special counsel Robert Mueller's Russia investigation.

2003 email shows Kavanaugh discussing Roe

In another flashpoint development, a previously unreleased 2003 email from Kavanaugh, while he was an official in the Bush White House, shows him raising the point of whether Roe v. Wade, the 1973 Supreme Court ruling that upheld the right to an abortion, was settled law of the land.

In the internal White House email, obtained by CNN, Kavanaugh wrote: "I am not sure that all legal scholars refer to Roe v. Wade as the settled law of the land at the Supreme Court level since Court can always overrule its precedent, and three current Justices on the Court would do so."

"The point there is in the inferior court point," Kavanaugh wrote, responding to a draft op-ed that had been circulated for edits between lawmakers and White House staff.

The draft, meant to be submitted under the name of "high-profile, pro-choice" women in support of a Bush judicial nominee, had said that "it is widely understood accepted by legal scholars across the board that Roe v. Wade and its progeny are the settled law of the land."

During the confirmation hearing on Wednesday, Kavanaugh said: "As a general proposition I understand the importance of the precedent set forth in Roe v. Wade."

Trump said during his campaign that he would appoint Supreme Court justices who would overturn Roe. In recent years, Supreme Court nominees have gotten through their confirmation hearings by refusing to say how they would rule on what they say is a hypothetical future case on the issue.

The New York Times first reported the email.

Throughout the contentious hearing, now in its third day, Kavanaugh has tried to give political questions -- especially those related to Trump and his potential legal woes -- a wide berth.

On Wednesday he insisted that "no one is above the law" but declined to say whether a sitting president must respond to a subpoena.

Senate Democrats have suggested that Kavanaugh could be biased in favor of the President and worry that his views on the primacy of executive power could help Trump evade legal scrutiny.