Justice on Trial: The Kavanaugh Confirmation and the Future of the Supreme Court

by Mollie Hemingway

  Democrats took the same stance during George W. Bush’s second term. A full eighteen months before that term ended, Senator Charles Schumer of New York declared that, absent “extraordinary circumstances,” no Supreme Court nominee should be confirmed if a vacancy arose while Bush was still president.2

  Within an hour of the news of Scalia’s death, McConnell announced that the vacancy would not be filled until after the election of 2016 and that President Obama should not bother with a nomination. “The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new President,” McConnell said.3

  McConnell’s speed in releasing the statement was intentional. He knew Scalia’s death was major news, and most of the fifty-four Republican senators, home for a week-long recess, would be peppered with questions about what they thought should be done. Contradictory statements from various Republican senators would breed confusion. He also believed that confirmation hearings would be both politically riskier and less respectful to the nominee. By refusing to consider anyone to fill the vacancy, McConnell would spare a nominee unnecessary criticism of his judicial opinions and philosophy. Despite their earlier position, Democrats were livid with McConnell’s stance, and their reactions led news coverage for days.

  Notwithstanding McConnell’s preemptive statement, the politically vulnerable Republican Mark Kirk of Illinois called for Senate hearings.4 Senator Jerry Moran of Kansas also briefly supported a hearing on an Obama nomination, but he reversed himself in the face of a furious backlash.5 When President Obama eventually nominated Judge Merrick Garland for Scalia’s seat, Maine’s Susan Collins told reporters she was “more convinced than ever that the [confirmation] process should proceed,” but she was “not optimistic that I will be changing minds on this issue.”6 Senator Jeff Flake of Arizona at one point encouraged Republicans to consider Garland’s nomination after the election and before newly elected senators took their seats.7 Still, McConnell’s statement proved remarkably effective at keeping Republican senators from announcing that they looked forward to a confirmation battle.

  Chuck Grassley, the senator in charge of judicial confirmations, was in his home state of Iowa at the time of Scalia’s death. It had snowed, and true to his reputation as a self-sufficient farmer, the octogenarian was shoveling his driveway, so he missed the numerous phone calls from his staff trying to alert him to the news. He first heard of Scalia’s passing from a Des Moines Register reporter who called him for comment. He demurred when asked what the next steps would be, but within hours he released an official statement that noted the futility of making a nomination. Ultimately, the decision whether to hold hearings on a nominee would be Grassley’s, and he was typically blunt:

  The fact of the matter is that it’s been standard practice over the last nearly 80 years that Supreme Court nominees are not nominated and confirmed during a presidential election year. Given the huge divide in the country, and the fact that this President, above all others, has made no bones about his goal to use the courts to circumvent Congress and push through his own agenda, it only makes sense that we defer to the American people who will elect a new president to select the next Supreme Court Justice.8

  Grassley’s position was politically riskier than McConnell’s. He was in a reelection campaign himself, and polls suggested that two-thirds of the country thought his committee should hold hearings on a nominee. The New York Times described Grassley as the “face of his party’s refusal to hold a hearing on President Obama’s nominee to the Supreme Court,” and warned that as a result he would face a “strong” and “formidable challenger” named, appropriately enough, Patty Judge, a former lieutenant governor and state agriculture secretary.9 (Grassley ultimately won reelection by a nearly twenty-five-point margin). Democrats focused their ire on Grassley and Harry Reid of Nevada, the minority leader, berated him on the floor of the Senate day after day. To force hearings, President Obama even considered nominating his Harvard Law School classmate Jane Kelly, a federal appeals court judge from Iowa, whom Grassley had supported when she was confirmed to the Eighth Circuit.10 “They did all their tactics, attacking him in town halls, chasing him in the hallway here, and all that kind of stuff,” one staffer reported. “It felt like you were in a foxhole, but at no point was he ever going to crack.”

  Senators were one thing, but candidates vying for the Republican nomination for president were another complication. The crowded primary field had narrowed from seventeen to the six who were to appear in a debate in Greenville, South Carolina, the night of Scalia’s death: former Governor Jeb Bush of Florida, the neurosurgeon and author Ben Carson, Senator Ted Cruz of Texas, Governor John Kasich of Ohio, Senator Marco Rubio of Florida, and the businessman Donald Trump.

  The Trump campaign’s legal counsel, Don McGahn, was driving down Route 50 to play guitar at a gig for his 1980s cover band in Ocean City, Maryland, when his wife texted him about Scalia’s death. McGahn pulled over to a gas station and cried. He had no relationship with Scalia, but the admiration and reverence for Scalia among conservatives (and even some on the left) was so strong that his passing was deeply and broadly felt. McGahn quickly pulled himself together. The new Supreme Court vacancy would come up in the debate in just a few hours. He needed to have a plan.

  A partner in the Washington office of the law firm Jones Day and a former chairman of the Federal Election Commission, McGahn was an ideal pick for the lean and scrappy anti-establishment Trump campaign, which needed someone who knew the system. He set up the legal structure for the campaign and would go up to New York to check in every few weeks. He’d been in Iowa earlier in the month for the caucuses, where Trump placed second behind Cruz. He’d also fought off an effort to keep Trump off the ballot in New Hampshire, whose primary Trump decisively won.

  While Trump had not made judges a focus of his campaign, as Senator Cruz had, his limited comments about them had already caused problems. Social conservatives in Iowa had been telling voters that Trump would not appoint good judges. He wasn’t a real conservative, and he had called his sister, Maryanne Trump Barry, a semi-retired senior judge of the U.S. Court of Appeals for the Third Circuit, “phenomenal.”11 Judge Barry had once issued a ruling finding constitutional protection for partial-birth abortion, in which the living child is partially extracted, feet first, from the womb before his or her skull is pierced and the brains sucked out. “Trump’s recent suggestion that he would nominate his sister, Maryanne Trump Barry, [to the Supreme Court] is troubling to some conservatives. Trump has said that Barry, who was a Clinton appointee, would be a ‘fantastic’ and ‘phenomenal’ justice,” the Washington Examiner reported.12

  The reporting, however, misinterpreted his remarks from an interview on August 26, 2015, with Bloomberg’s Mark Halperin and John Heilemann. Trump had defended Justice Clarence Thomas, critiqued Chief Justice Roberts’s recent rulings, and said it was “inappropriate” to identify who he thought would be good on the Court. “What about your sister?” Halperin asked. Trump effusively praised his seventy-eight-year-old sister before saying of her nomination that he’d have to “rule that out for now.”13 The carefree comment was obviously not serious, as he clarified later.

  Still, however his views had been mischaracterized, Trump did not emphasize judicial appointments as other candidates did. “The next president will have the awesome responsibility to pick up to four Supreme Court justices that will decide issues of life and religious liberty,” Carly Fiorina told the crowds gathered at the March for Life in January 2016.14 Judges were arguably Ted Cruz’s main selling point to voters. The first Hispanic to clerk for a chief justice of the United States, Cruz had personally argued eight cases before the Supreme Court as the solicitor general of Texas.15

  In an early debate on September 16, 2015, Cruz attacked Jeb Bush by pointing to the appointments of David Souter and John Roberts as examples of the Bush family’s failure to put “rock-ribbed c
onservative” jurists on the Court.16 He told Bloomberg News in December 2015 that every Supreme Court appointment he made would be of a “principled judicial conservative.” Lamenting Republicans’ record of picking weak justices who drifted to the left, Cruz promised to fight hard to keep conservatives from being disappointed. “The Republicans have an abysmal record. We bat about .500,” he said. “About half of the nominees Republicans have put on the court have not just occasionally disappointed but have turned into absolute disasters.” He said he would look for judges who had refused to bow to pressure and who had a “long paper trail” of taking principled stands.17

  Cruz accurately reflected the concern of politically astute Republican voters. The anxiety wasn’t new, but it was becoming acute.

  Supreme Court nominations took on a new importance in Republican politics during the presidency of Dwight D. Eisenhower. Of the five appointments he made to the Supreme Court in his eight years in office, the first was the most consequential: the recess appointment of Governor Earl Warren of California as chief justice.18 That was followed by the appointments of Associate Justices John Marshall Harlan, William Brennan, Charles Evans Whittaker, and Potter Stewart.

  Eisenhower’s focus in his Supreme Court appointments was on political, not jurisprudential, considerations. His appointment of Warren was, in part, a reward for withdrawing from the 1952 Republican presidential race, a move that ensured Eisenhower’s success. Because Warren was a Republican, as was Harlan, Eisenhower’s recess appointment of the Democrat William Brennan was a gesture of bipartisanship, and he hoped that naming a Catholic Democrat to the Court in the closing days of his 1956 reelection campaign would help him with northeastern voters.19 Eisenhower’s legal affairs adviser had heard Brennan give a speech that he interpreted as conservative. Brennan became “probably the most influential justice of the century,” according to Scalia, but certainly not as a conservative.20 Eisenhower was known for saying that the two biggest mistakes of his presidency were sitting on the Supreme Court—Warren and Brennan.

  Americans remember the Warren Court as the most liberal in the nation’s history. It is true that the results of its decisions—desegregation,21 the banning of prayer in public schools,22 the expansion of rights for those accused of crimes,23 and the elimination of laws against birth control24 —coincided with much of the progressive agenda of the mid-twentieth century. But judicial conservatives’ criticism was focused on the anti-democratic means by which the Court sought to reshape American society. The proper constitutional means to achieve any societal or legal change is legislation passed by elected representatives, not the fiat of unelected judges. Progressives disagreed. Frustrated by their inability to achieve all they wanted through the political process, they applauded each time the Warren Court intervened in their favor. Justice Brennan described the power of these unelected justices with chilling clarity when he told his incoming clerks that the most important rule in the law was the “Rule of Five.” With a majority of five votes, the Court could do anything.

  It soon became evident that the Warren Court was willing to rewrite any law to achieve its transformative political desires, regardless of precedent or the Constitution’s clear language. For example, in Griswold v. Connecticut, the Court determined that the Constitution required states to allow contraceptive use by married couples, locating this new “right to privacy” in “penumbras, formed by emanations” of no fewer than six constitutional amendments.25 The dissenters argued strongly that a law may be “offensive,” “uncommonly silly,” “unwise, and even asinine,” but still not run afoul of the Constitution.26 And they expressed concern that allowing judges to overturn laws without a clear constitutional mandate would lead to “a great unconstitutional shift of power” that would “jeopardize the separation of governmental powers” envisioned by the Constitution.27 Griswold became a precedent on which the majority of the Court relied eight years later in Roe v. Wade to establish a constitutional right to abortion.28

  Other decisions, such as Brown v. Board of Education, may have been correct in their result but were decided on the basis of sociological studies rather than constitutional and legal principles.29 The renowned Judge Learned Hand, himself an opponent of segregation, criticized the decision at the time because the Court, instead of concluding that any segregation on the basis of race was unconstitutional per se, framed its decisions as bound up in the state of public education and appeared to be acting as a “third legislative chamber” rather than as a judiciary properly limited to “keeping Congress and the states within their accredited authority.”30

  Some of the Warren Court’s decisions, particularly Engel v. Vitale, which blocked public schools from opening with a nondenominational prayer even when non-compulsory, activated a grassroots movement of evangelicals. The Court cited not a single precedent for its decision, which conservatives viewed as an exercise of raw political power. Americans inundated both the Supreme Court and Congress with mail. In his doctoral dissertation on the rise of the religious right, Ben Sasse, now a U.S. senator from Nebraska, wrote, “The House of Representatives evaluated an unprecedented 145 proposed constitutional amendments in 1964 to reestablish school prayer by changing the First Amendment, followed up by scores more proposals in 1966 and 1970.”31

  The Court’s constitutional improvisation fueled Barry Goldwater’s 1964 presidential campaign, an apparently devastating defeat now widely regarded as the genesis of the conservative movement that would eventually carry Ronald Reagan to the White House. Goldwater decried the Court’s diktats on reapportionment and prayer in schools, calling them an exercise of “raw and naked power,” proof that “of all three branches of Government today’s Supreme Court is the least faithful to the constitutional tradition of limited government, and to the principle of legitimacy in the exercise of power.”32 Echoing the Griswold dissenters, Goldwater declared that “the job of keeping the law up to date should be in the hands of the legislatures, the Congress and the common law courts, not just in the hands of the nine appointed Justices.” If the policy that resulted was not the one favored by conservatives, so be it. “[T]o a constitutionalist, it is at least as important that the use of power be legitimate than that it be beneficial.”33

  Following the decision in Miranda v. Arizona, which went beyond constitutional prohibitions on forced self-incrimination to mandate the now-famous formulation of rights recited at every arrest, Richard Nixon made “law and order” the central theme of his presidential campaign in 1968.34 He promised to nominate “strict constructionists who saw their duty as interpreting and not making law.”35 Nixon thought strategically about his judicial appointments, but his constitutional views were in fact more liberal than those of many of his voters.36 While he really did care about law and order, he was not noticeably devoted to constitutional originalism, and his appointments to the Supreme Court were not much better than Eisenhower’s. Chief Justice Warren had already announced his retirement before Nixon took office, but President Lyndon B. Johnson’s attempt to replace him with his friend and political ally Abe Fortas ran into a Senate filibuster. Nixon appointed Warren E. Burger, who, though not the radical that Warren was, oversaw seventeen years of muddled opinions, including the infamous Roe v. Wade. Nixon also appointed Associate Justices Harry Blackmun, the author of Roe, Lewis F. Powell, and William Rehnquist. Only Rehnquist was consistently a constitutionalist.

  President Gerald Ford’s only Supreme Court appointment, John Paul Stevens, also turned out to be a disappointment for conservative voters. Stevens’s liberalism might have “surprised his appointer,” as George Will has written, but it apparently did not displease him.37 In 2005, Ford reflected, “I am prepared to allow history’s judgment of my term in office to rest (if necessary, exclusively) on my nomination 30 years ago of Justice John Paul Stevens to the U.S. Supreme Court.”38 Conservatives, however, certainly were displeased. Among his other affronts to sound constitutional interpretation, Stevens authored the opinion that conferred on
government agencies broad discretion in interpreting acts of Congress,39 and he dissented from the landmark Heller decision, which affirmed that the right to bear arms is an individual right.40

  The records of Eisenhower, Nixon, and Ford showed conservative voters that they could not trust Republican presidents to appoint justices who felt bound by the text of the Constitution as understood by those who ratified it.

  By the time Ronald Reagan was elected president in 1980, the conservative electorate was actively concerned about judges. The Republican platform called for judges who respected “traditional family values and the sanctity of innocent human life,”41 leading liberal media and special interest groups to accuse Reagan of imposing an abortion “litmus test” on potential judges. He denied the charge, but he promised to appoint judges who opposed the judicial activism of the Warren and Burger Courts. He also promised that one of the first Supreme Court vacancies of his administration would be “filled by the most qualified woman” he could find.42 “It is time for a woman to sit among our highest jurists,” he said.43

  Justice Potter Stewart resigned at the end of the Court’s term in 1981, Reagan’s first year in office. Edwin Meese III, one of Reagan’s closest advisers, recalls that the list of possible nominees contained only two qualified Republican female judges, one of whom was Sandra Day O’Connor, a state appellate judge in Arizona. When O’Connor met with President Reagan, they didn’t discuss anything of substance but chatted about cattle ranching.44 A Republican politician before she became a judge, she seemed conservative enough in her hearing and was confirmed easily, but she soon began to drift left.