Justice on Trial, by Mollie Hemingway and Carrie Severino (Regnery, 256 pp., $28.99)
NRPLUS MEMBER ARTICLE T he nomination and confirmation of Brett Kavanaugh to the Supreme Court was the political event of 2018, though not for the reasons anyone expected. All High Court confirmations these days are fraught with emotion and tumult as the Court looms ever larger on the political scene. But the Kavanaugh circus last year took that excitement to a new level with hysterical demonstrations, wild accusations, and the sense of a country that was losing its mind.
In Justice on Trial: The Kavanaugh Confirmation and the Future of the Supreme Court, Mollie Hemingway and Carrie Severino recount the hearings that captivated court-watchers, political junkies, and — by the end — the whole nation. Through a careful recounting of the events helped by scores of interviews with the political players, Hemingway and Severino have laid out the galvanizing tale of mudslinging and madness that reinforced the nation’s separation into rival political tribes, and the nomination that pushed the Court toward a more reliably originalist and conservative disposition.
The drama began even before Kavanaugh was selected. From the moment Justice Anthony Kennedy announced that he would retire, interest groups planned their assault on the nominee for his replacement, whoever that might be. The authors describe a massive, well-funded effort to smear and destroy whichever judge President Trump nominated, even down to the signs protesters were given with a blank space to fill in the nominee’s name.
The authors draw a clear parallel to the Left’s opposition to earlier nominees, including Robert Bork and Clarence Thomas. Then, as now, mainstream-media sources echoed the Democrats’ complaints so perfectly that, if they were not actively coordinated, they might as well have been. This time, there was never a pretense of objectivity or consideration: They planned from the start to oppose whomever the president nominated.
Part of the reason behind that was the unending hysteria that had been directed against the president from the moment he was elected. Part was also due to the growing importance of the Court in an age where Congress declines to solve the nation’s problems, electing instead to draft vague, poorly written laws — when they bother to write laws at all — leaving the unelected courts to sort out the mess. Another source of the instant madness had its roots in one of Trump’s better decisions: publishing a list of potential Supreme Court nominees before he was elected.
Hemingway and Severino examine the list and the several additions to it, pointing out how this radical departure from previous candidates’ practice helped cement the loyalty of many conservative voters who worried that Trump would not appoint judges who aligned with their values. Conceived after the death of Justice Antonin Scalia in 2016, the list proved a masterstroke. It redounded to Trump’s benefit as voters saw clearly that the fate of the closely divided Court would rest in the hands of whoever took office in 2017.
Kavanaugh was not on the original version of the list and was not added until November 2017. When Kennedy’s seat opened up in June 2018, Kavanaugh — who had clerked for Kennedy and whom Kennedy highly regarded — was considered among the front-runners. Objections to him within Trump’s administration were mainly that he was too much a creature of Washington for a White House that had promised to “drain the swamp.” On the Senate side, Majority Leader Mitch McConnell liked Kavanaugh well enough, but foresaw problems with the massive paper trail created through Kavanaugh’s time in the Bush White House.
Confirmation was indeed an issue, though not in the way McConnell thought. The paper trail was an objection raised by Democrats, mainly as a delaying tactic. They pled for more and more time to examine records, hoping perhaps that in the meantime they might somehow gain a Senate seat or convince a Republican to defect. The tactic was not far-fetched: Democrats had gained one six months earlier when Doug Jones defeated a scandal-tarred Republican nominee in Alabama, Roy Moore. That left Republicans clinging to a 51–49 majority, and several GOP senators were thought to be doubtful on Trump’s nominees.
It all made for high drama as the confirmation hearings began. Democrats threw a tantrum even before Judiciary Committee chairman Chuck Grassley could begin the day’s action. Presidential hopefuls Kamala Harris and Cory Booker led the outbursts, demanding still more time to examine the nominee’s voluminous record. It was a strange request, as the authors note: All Democrats on the committee but one (Chris Coons of Delaware) had already announced their intention to vote against Kavanaugh, with some doing so before the formal nomination had even reached the Senate. With their minds made up, what was the point of reading reams of decade-old e-mails?
The distinction was lost on them, and calls for delay were at the center of the Democrats’ strategy. Other tactics were featured as well — Harris’s attempt at a perjury trap, Booker’s inept “Spartacus” roleplaying, Sheldon Whitehouse’s bizarre conspiracy theories — but none had the effect of dissuading any Republican from endorsing the nominee. Kavanaugh appeared to have survived the onslaught.
As the committee vote drew near, however, The Intercept published a story suggesting that the Judiciary Committee’s ranking member, Dianne Feinstein, had received a letter from a woman accusing Kavanaugh of having sexually assaulted her when they were teenagers. BuzzFeed picked up the story, and mainstream outlets soon followed the rumor, which turned out to be true: The letter did exist. As we now know, the message from Christine Blasey Ford soon became public and the charge reshaped the Democrats’ opposition to Kavanaugh.
The floodgates now opened. Although no hint of sexual misconduct had ever attached to Kavanaugh in his previous confirmation hearings or FBI background checks, similar stories of varied provenance now found their way into the spotlight. A Yale classmate recounted a dimly remembered story of someone exposing himself at a party — she blamed Kavanaugh. Legal gadfly Michael Avenatti — currently under federal indictment, but then a media darling — found a witness with tales of drug-fueled rape gangs led by Kavanaugh and his high-school chums. Whitehouse produced a report that came into his office claiming that Kavanaugh and his friend Mark Judge had raped someone on a boat in Rhode Island in 1985. And on and on.
Many of these accusations were disproved immediately, but only after the media breathlessly reported them as worthy of consideration. The Rhode Island accuser admitted the story was false after the FBI looked into it, and more followed suit once their stories were exposed as frauds. But others hung on, and the Ford letter became the focus. The authors’ recounting of the tedious negotiations between Ford and Grassley just to get her to appear recalls the tension of those weeks and take the reader back to the craziness of the time.
Ford’s eventual testimony was compelling to some, but not the slam-dunk her supporters envisaged. The Democrats saw themselves as defenders of all women, especially in 2018 when America was at the height of the #MeToo movement, but their handling of Ford’s claims did not benefit them in the eyes of many women. One doubter was First Lady Melania Trump, who watched the testimony with her husband and said, “You know that woman is lying, don’t you?”
Another woman affected by the Democrats’ handling of the affair was Senator Susan Collins of Maine. Viewed from that start as the Republican most likely to defect on the confirmation vote, she was subjected to pressure from colleagues, protesters, and seemingly everyone she ran into in her daily life. Collins’s eventual decision to back Kavanaugh was, as the authors note, the logical outcome of the divergent strategies of Republicans and Democrats in the Senate.
The interest groups, protesters, mainstream media, and many of the Democratic senators themselves joined in a campaign to speak directly to the voters about defeating Kavanaugh — or anyone else Trump nominated. It was reminiscent, in some ways, of Trump’s 2016 campaign, in which he talked past reporters to address the voters directly through social media. But the Democrats were aiming at the wrong target. Their scattershot blasts of anti-Kavanaugh messages energized their base, but that base had already had their say and would not vote again until November. Even the Democrats could not stretch things out that long.
Grassley and the Republican leadership concentrated on their true target: the 51 senators whose votes were needed to confirm the nominee. They hoped to pick up a few Democratic votes, but it would not be necessary: The Democrats’ ill-advised filibuster of Neil Gorsuch’s nomination in 2017 had persuaded Republicans to finish the work begun by Harry Reid and end the filibuster for Supreme Court nominees. Now they focused on convincing any doubting senators on their side of the aisle that the allegations against Kavanaugh where insufficient to derail his confirmation.
It worked. The hysteria directed at Collins from the left only alienated her, while the evidence calmly presented by her colleagues on the right convinced her. Instead of peeling away voters and senators, the Left’s propaganda campaign pushed doubters back into the arms of their fellow Republicans.
As the leadership worked to convince senators, the campaign conducted out in the country showed a marked departure from the days of Clarence Thomas’s “high-tech lynching” at the hands of Joe Biden’s judiciary committee. In those days, a media juggernaut told only one side of the story, a failure of intellectual diversity in a news environment that the technical limitations of the time had left concentrated in a few hands. In 2018, the expansion of cable news and the internet allowed a diversity of thought and messages. Kavanaugh’s side of the story could be heard across the country.
Added to that was a conservative movement that had learned from the challenges of Bork and Thomas. From the beginning of the process, as the authors show, Kavanaugh’s friends and former clerks organized the case for him, joined by special-interest groups and fundraisers who could, if not match the wealth of the Left, at least compete with it. Combined with the fighting spirit of a president who refused to admit defeat over the mere rumor of scandal, it made for far more ardent support than any embattled Republican nominee had ever enjoyed.
The Kavanaugh nomination has been called galvanizing, and the results of the 2018 Senate races prove the point. The midterms were, typically, tough on the party that held the White House, and Republicans lost control of the House of Representatives. In the Senate, however, they gained three seats. Among those losing were Heidi Heitkamp, Joe Donnelly, Bill Nelson, and Claire McCaskill: all swing-state Democrats who voted against Kavanaugh. One red-state Democrat who survived was Joe Manchin, the only one of his party to vote yes on Kavanaugh.
Hemingway and Severino tell a briskly paced tale that is richly detailed without losing its readability. Well cited and well researched, it lays the groundwork for history’s view of the strange political times that surrounded Kavanaugh’s nomination, surveying the available reporting and adding new material from interviews and investigation. Justice on Trial is an enjoyable read for today’s politically minded observer, and will be indispensable for any future historian’s analysis of what really happened in 2018.
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