Michael Smolens: Feinstein frustrates Democratic progressives during Kavanaugh hearings

Sept. 07--As her election opponent cheered the protests from afar, Sen. Dianne Feinstein apologized for them.

"I'm sorry for the circumstances, but we'll get through them," she told Supreme Court nominee Brett Kavanaugh Wednesday amid an outburst during the second day of his confirmation hearing before the Senate Judiciary Committee.

If she was trying to enrage the progressive wing of the Democratic Party, she did a pretty good job. Even before the hearing started on Tuesday, Democratic liberals who have been critical of Feinstein over the years said they were concerned about her more genteel approach to politics when they believe confrontation is warranted in the era of Trump.

"Comity right now is not needed in the U.S. Senate," Democratic state Sen. Kevin de León, Feinstein's opponent in November, said on Wednesday in an interview with The San Diego Union-Tribune editorial board. "It requires extraordinary efforts that are out of the box and not the same old, tired Washington playbook of yesterday."

De León acknowledged that any assessment from him about Feinstein's performance during the hearings "is going to come off as self-interested and highly subjective." But his comments mirrored those of other progressives who lit up social media complaining about Feinstein.

Feinstein's center-left politics and refined public demeanor have served her well during a quarter-century in the Senate and at the ballot box. She has hardly been threatened seeking re-election in California.

Liberal Democrats may not be happy with her, but Feinstein has used the forum to challenge Kavanaugh on matters of importance to them and her: abortion rights, gun control and executive power -- specifically, whether a president must respond to a subpoena.

She asked him about Roe v. Wade, the 45-year-old ruling that established abortion as a fundamental right under the Constitution. He noted that the ruling has been reaffirmed many times and that it's established precedent, but he did not give his legal view of it. After he gave a long answer on a question about executive power but did not clearly state his position, Feinstein told him: "You're learning to filibuster."

At one point, he defended his appellate court dissenting opinion that an assault weapons ban was unconstitutional. Feinstein, whose long-expired federal assault weapons ban is still a hallmark of her Senate tenure, took to Twitter to declare "Brett Kavanaugh is one the nation's most extreme judges on guns."

Feinstein was criticized by conservative publications about how she framed questions during the hearing on gun control (National Review) and abortion (Washington Examiner) -- which some Democrats would consider a badge of honor.

Inevitably, the senior Democrat on the Judiciary Committee is going to be compared with California's other senator, Kamala Harris, who also sits on the panel. The contrasts are striking.

Harris, a favorite of progressives, further solidified her status when she interrupted committee Chairman Charles Grassley, R-Iowa, during his opening remarks Tuesday. She demanded the hearing to be delayed to give Democrats time to review 42,000 pages of documents released the night before.

Other Democrats joined in, disrupting the proceedings, and the meeting nearly spun out of control when protesters in the audience chimed in.

Asked for his analysis, de León told the Union-Tribune editorial board Wednesday that Harris has been aggressive and "I think she's done an outstanding job."

That was even before Harris, the former California attorney general, took a prosecutorial tact in questioning Kavanaugh Thursday. Clips of the exchanges quickly ricocheted across social media.

Regarding Feinstein, de León said, "As difficult as this may sound, objectively, I think it's been a subpar performance."

"You have a tale of very different approaches on the Judiciary Committee," he added.

Those approaches may fit the senators' political needs. Feinstein has shown broad appeal in California, and that includes among voters who have no party preference and cross-over Republicans. She has bemoaned the breakdown of civility in politics and clearly believes working across the aisle when possible is good government and good politics.

Not everyone agrees. In a surprise move, the state Democratic Party endorsed de León in July. A poll two weeks later showed Feinstein with a still-commanding 2-1 lead, though she again fell just short of gaining 50 percent support. She also continues to have a huge financial advantage. A new poll by Probolsky Research has the race narrowed to an eight-point Feinstein lead with de Leon, running as the more liberal of the two, taking a perplexing five-point lead among Republicans. Both polls show a large percentage of undecided voters.

Harris is one of several Democrats who may be positioning themselves for a possible presidential run in 2020. Capturing the activist, progressive base of the party would be key for any candidate.

As for Kavanaugh, the math is pretty simple that he gets confirmed unless some blockbuster revelation derails him. So while serious legal and societal matters are being addressed, the confirmation process is playing to the coming campaign and beyond.

Feinstein long has had an uneasy relationship with the Democratic Party's liberal wing but has highlighted that dispute when it suits her. In 1990, she famously reiterated her support for the death penalty during a state party convention, a move guaranteed to elicit boos from the crowd. Her political team captured the moment on video and turned it into a campaign ad.

But times are different. The current Democratic Party surge is fueled by a loathing of Trump and propelled, in part, by liberal activists seeking to push some older, longtime incumbent Democrats aside. Witness the House primary victories by Ayanna Pressley in Massachusetts and Alexandria Ocasio-Cortez in New York.

As California has become even more Democratic and liberal since she was first elected to the Senate, Feinstein says she, too, has evolved. After being ridiculed last year for urging people to have patience with Trump, she has taken a harder line against him. In the spring of this election year, she said she no longer opposed legalization of marijuana.

Further, she said that some years ago she came to the conclusion that the death penalty is unfair and began opposing it. But she didn't make that position public until a couple of weeks before the June primary.

This is Feinstein's first time running for re-election against a Democrat in November, a dynamic created by the state's relatively new top-two primary system.

Don't count on her campaign running an ad of her apologizing to Kavanaugh.

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