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

by Mollie Hemingway

  Meanwhile his clerks felt optimistic but unsure, particularly given President Trump’s flair for drama. While emails went out earlier in the day to people who would be invited to an announcement regardless of the nominee, it wasn’t until the five o’clock hour that Kavanaugh-specific guests received their invitations. Even then nobody felt fully confident. As the clerks waited in the East Room, they noticed a large group of empty chairs, set aside for senators who were due to arrive at the last minute. “We think it’s us, but that’s where all the Kethledge people sit,” someone joked. It wasn’t until Kavanaugh walked on stage that everyone breathed a sigh of relief.

  The standard critique of every male Republican nominated to the Supreme Court is that he is hostile to “women’s rights,” a euphemism for unregulated abortion. It was the main attack on John Roberts, but it was also levied against those who would turn out to be defenders of abortion, such as David Souter.4 Everyone knew that Kavanaugh would face the same attack, but he would meet it with a lifelong record of being shaped by and working alongside strong women. He was determined to showcase them in the key first forty-eight hours.

  In his speech that evening, Kavanaugh’s love for his mother shone through. He praised her work as a teacher at two largely African American public high schools in Washington, D.C. He expressed his pride in her for going to law school when he was ten—an unusual career path for a woman at that time—and becoming a prosecutor and eventually a judge. He recalled his mother’s customary advice to a jury: “Use your common sense. What rings true? What rings false?” And he said, “The president introduced me tonight as Judge Kavanaugh. But to me that title will always belong to my mom.”5

  An only child, Kavanaugh was extremely close to his parents. They had both attended law school at American University when he was a boy and used to tease each other about who got better grades. With two parents who were lawyers, he got to see the creative ways working mothers balance all their responsibilities. In eighth grade, Kavanaugh was in a five-person carpool at his Catholic school. On her day to drive, Mrs. Kavanaugh would send a taxi to pick up her son and the other kids, one of whom was a third-grader.

  He expressed gratitude to Justice Elena Kagan, who had hired him as an adjunct professor at Harvard Law School when she was its dean. Kagan was known for her efforts to hire conservatives, having included three among her forty-three full-time faculty hires, more than doubling (to 2 percent) the conservative share of the overwhelmingly progressive law faculty. She realized that her students would be disadvantaged as lawyers if they were taught only by liberals, because they would never be forced to defend their views vigorously and because many judges are themselves conservative.

  A majority of Kavanaugh’s clerks had been women. He talked about his “spirited daughters,” Margaret and Liza, whose basketball teams he coached. And he expressed love and respect for his wife.

  Kavanaugh was already well known in the legal community as a powerful judge on one of the most important federal courts. But in his speech, he tried to share more about himself. “The girls on the team call me ‘Coach K,’ ” Kavanaugh noted wryly, jokingly comparing himself to the legendary Duke University basketball coach Mike Krzyzewski. Some of his clerks had urged him to remove the jest, but it was one of a few lines that elicited laughter in the otherwise staid ceremony.

  Kavanaugh recognized how effective previous Supreme Court nominee speeches had been. Elena Kagan had depicted herself as the child of immigrants who were the first in their families to go to college.6 Sonia Sotomayor had talked about growing up in a housing project and the importance of taking into account the “real world consequences” of her judicial decisions, echoing President Obama’s call for empathetic judges.7

  NBC’s Chuck Todd called Kavanaugh “a very confirmable pick.”8 But his invocations of the women in his life irked the Washington Post’s Aaron Blake, who wrote, “The nominee’s introductory speech was remarkably political. Over and over again, Kavanaugh returned to the women in his life and the diversity of those around him.”9 The following night, Stephen Colbert made fun of his focus on women, calling him a “cover model for Generic Dads Monthly” and mocking his first name.10 The abortion advocacy group NARAL ridiculed Kavanaugh on Twitter as a “frat boy named Brett,” an ominous preview of his opponents’ eventual strategy.11

  Blake continued to vent his disapproval in another article, lashing out at Kavanaugh’s statement that “[n]o president has ever consulted more widely, or talked with more people from more backgrounds, to seek input about a Supreme Court nomination,” a claim he dismissed as “thoroughly strange and quite possibly bogus.”12 It is difficult to quantify presidential consultation on Supreme Court appointments, of course, but Kavanaugh knew what he was talking about, and he wasn’t exaggerating. He had seen and read how other administrations had kept deliberations internal. After all, he worked in the White House that nominated Harriet Miers. By all accounts, Trump began his Supreme Court search in the middle of the primaries and sought advice from a variety of individuals and organizations. He talked about it in meetings and even at his rallies. He and his team made sure those on “the list” had been thoroughly vetted, talking to the judges they had clerked for and to their co-clerks and reading their opinions and articles. From Kennedy’s retirement announcement until Sunday’s meeting with Kavanaugh, the president discussed his potential nominees with senators, pundits, friends, and advisers.

  Trump closed his introduction of Kavanaugh by saying, “The rule of law is our nation’s proud heritage. It is the cornerstone of our freedom. It is what guarantees equal justice. And the Senate now has the chance to protect this glorious heritage by sending Judge Brett Kavanaugh to the United States Supreme Court.”13

  The numbers in the Senate left no room for error. Some Democrats, such as Senator Bob Casey of Pennsylvania, had announced they would vote against anyone the president nominated.14 The New York Times had instructed Democrats and progressives to “take a page from ‘The Godfather’ and go to the mattresses” on any nomination.15 Immediately after the announcement, the Senate minority leader, Chuck Schumer of New York, declared he would “oppose Judge Kavanaugh’s nomination with everything” he had, adding, “If we can successfully block this nomination, it could lead to a more independent, moderate selection that both parties could support.”16 Schumer knew what Republicans also knew—if Kavanaugh’s nomination were scuttled, his replacement would probably be more liberal.

  Realistically, very few if any Democrats would consider voting for Kavanaugh. When Trump nominated the eminently qualified Neil Gorsuch, the only Democrats to vote for him were Joe Donnelly of Indiana, Heidi Heitkamp of North Dakota, and Joe Manchin of West Virginia. All three represented states that Trump had carried and were facing tough reelection bids in 2018. The other potential Democratic votes were Missouri’s Claire McCaskill, who was also on the ballot in 2018, and Alabama’s Doug Jones, who would have to decide between embracing his liberal roots and moderating to preserve his chance for reelection in 2020.

  Republicans held a slim majority of fifty-one to forty-nine in the Senate, made even more tenuous because one Republican was not expected for the eventual vote. Senator John McCain had returned to Arizona months earlier, following his diagnosis of glioblastoma, a rare and aggressive brain cancer. Without McCain, Republicans could not afford to lose a single vote. But the Republican caucus was not a monolith. Senator Rand Paul and others from the libertarian side of the party had reservations about Kavanaugh’s Fourth Amendment jurisprudence. Senators who support abortion rights sought assurance that the nominee’s respect for stare decisis (Latin for “to stand by things decided,” that is, conformity to legal precedent) meant he would not upset the status quo in abortion law. And some “NeverTrump” senators were in the midst of battles with the president that occasionally spilled over into their work in Congress.

  Most of the anxiety on the left concerned abortion and other culture-war issues. The problem was not with Kavana
ugh personally as much as the fact that he would replace a pivotal justice. In their haste to respond to the nomination, the organizers of the Women’s March accidentally issued a statement opposing “Trump’s nomination of XX to the Supreme Court.”17 Democracy for America’s press release, apparently drafted with Amy Barrett in mind, referred to Kavanaugh as “she.”18 Protesters at the Supreme Court avoided the embarrassing “Mad Libs” signs—“#Stop _________”—they had used when Gorsuch was nominated.19 This time they had multiple printed versions ready to go, but the occasional “#StopKethledge” or “#StopHardiman” sign showed up in television shots of the crowd.20 These lapses confirmed what everyone already knew—to the left, it didn’t matter whom Trump nominated.

  As the announcement of Kavanaugh’s nomination was made, a large crowd gathered outside the Supreme Court in a protest organized by the Center for American Progress (CAP), funded by George Soros and founded by John Podesta, a close aide to Barack Obama and the Clintons. As they waited to find out who it was, they chanted “Hey, hey! Ho, ho! The patriarchy has got to go!”21 As soon as Trump’s nominee was announced, CAP’s president, the longtime Clinton insider Neera Tanden, shouted to the crowd that Kavanaugh was an “extremist who will damage our country for decades. . . . We must ensure that we defeat Brett Kavanaugh. All our rights are at stake. Roe v. Wade. Health care. Democracy itself.”22

  Senators Bernie Sanders of Vermont, Elizabeth Warren of Massachusetts, Kirsten Gillibrand of New York, Cory Booker of New Jersey, Richard Blumenthal of Connecticut, Jeff Merkley of Oregon, and Tina Smith of Minnesota also spoke. Their rhetoric was apocalyptic. Kavanaugh would “pave a path to tyranny,” proclaimed Merkley. Gillibrand said that to keep Brett Kavanaugh from becoming justice, it would take “all of us fighting as hard and as long as we can.” Elizabeth Warren warned, “I’m not going to sugarcoat this. We are in the fight of our lives.”

  The progressive groups represented at that night’s anti-Kavanaugh protest included the Service Employees International Union, Planned Parenthood, People for the American Way, the National Women’s Law Center, the National Center for Transgender Equality, the National LGBTQ Task Force, Lambda Legal, the Constitutional Accountability Center, the NAACP, the Leadership Conference on Civil and Human Rights, End Citizens United, Giffords.org, Americans United for Separation of Church and State, Earthjustice, Generation Progress, the League of Conservation Voters, and the Progressive Change Campaign Committee.

  “I have some news for you, Mr. President! We are every bit as determined to block Judge Kavanaugh’s nomination as you are to realize your anti-woman, anti-civil rights, homophobic agenda,” said Debra Ness of the National Partnership for Women and Families. “This will be the fight of our lives and we will win.” Ilyse Hogue of NARAL Pro-Choice America announced a fifty-state day of action to oppose Kavanaugh, with eighty organizations participating.

  Several speakers, such as Adam Green of the Progressive Change Campaign Committee and Ben Wikler of MoveOn, identified Republicans Susan Collins and Lisa Murkowski, both of whom support abortion rights, as the senators they would press to vote against Kavanaugh. They were off to a rough start with Collins, who felt that some of her colleagues and liberal activists were whipping people into a frenzy. She was determined to fulfill her constitutional duty of “advice and consent” and approach the nomination with an open mind.

  The rally was raucous. The crowd grew. Reporters were jostled. For large events, Supreme Court police typically put up barriers to ensure the safety of both protesters and media. They didn’t expect the crowds to be as big or as boisterous as they were.

  Shannon Bream, a longtime Supreme Court correspondent, had planned to host her eleven o’clock television show Fox News @ Night from the Supreme Court, but at 9:31 p.m. she tweeted, “Very few times I’ve felt threatened while out in the field. The mood here tonight is very volatile. Law enforcement appears to be closing down 1st Street in front of SCOTUS.”23 Minutes later she announced that the production team was forced to move back to the safety of the Fox News studios.

  Across the street in the U.S. Capitol, Republican senators’ senior staff met that night at ten o’clock to begin preparations for the confirmation fight.

  By the end of the night, the battle lines had been drawn. Establishment Republicans were delighted with the nomination of an official from the Bush administration. Grassroots conservatives were accepting if not enthusiastic. In their eyes, Kavanaugh was a standard-issue Bushie, a milquetoast nominee. Most conservative leaders kept their mild disappointment to themselves, understanding the precarious situation of the Senate. In fact, some in the White House had expected far more pushback both for selecting Kavanaugh and for not selecting the conservatives’ favorite, Judge Barrett. A few spoke out, but they were discouraged from making too much of it. While Tony Perkins of the Family Research Council did not oppose the nomination, he urged conservatives to “trust but verify” that Kavanaugh would be the justice they wanted.24 As for the progressive left, they didn’t need any more verification. They were enraged and ready to fight.

  One of their first attacks was that any nomination by President Trump was illegitimate. As the NAACP’s Hilary Shelton put it, “We have a criminal investigation into the presidency itself. That investigation must be completed before the Senate even thinks of evaluating a lifetime appointment of a Supreme Court justice.” The actress and activist Alyssa Milano had tweeted out the same argument, in all capitals, right after Kennedy stepped down: “TRUMP SHOULD NOT BE ABLE TO CHOOSE A LIFETIME APPOINTEE WHILE HE IS UNDER FEDERAL INVESTIGATION. FULL STOP.”25

  Paul Schiff Berman, a professor at George Washington University Law School, wrote in the New York Times that no nominee could be confirmed until Robert Mueller had completed his investigation of the Trump campaign’s possible “collusion” with Russia: “People under the cloud of investigation do not get to pick the judges who may preside over their cases. By this logic, President Trump should not be permitted to appoint a new Supreme Court justice until after the special counsel investigation is over, and we know for sure whether there is evidence of wrongdoing.”26

  Whatever its intuitive appeal, Berman’s proposition had no legal basis and was almost laughable in light of recent history. In fact, a majority of the present Court had been appointed by a president who was then under investigation. Anthony Kennedy himself was appointed just a year after an independent counsel began investigating President Reagan’s role in the Iran-Contra affair. President Clinton appointed Stephen Breyer eight months after Attorney General Janet Reno appointed a special prosecutor to investigate the Whitewater scandal. Both Roberts and Alito were appointed while the Bush administration was under investigation by a special counsel in the Valerie Plame affair. And the FBI’s investigation of Trump was already underway when Neil Gorsuch was appointed.27

  Other Democrats attempted to impose a “Garland rule.” Still incensed that Senator Grassley had refused to hold hearings on Merrick Garland’s nomination in 2016, they demanded that hearings on this nomination be delayed until after the midterm elections. “With so much at stake for the people of our country, the U.S. Senate must be consistent and consider the president’s nominee once the new Congress is seated in January,” Senator Dick Durbin said.28

  Of course, while there were numerous precedents for not holding hearings in a presidential election year when the Senate was controlled by a party other than the president’s—and even for an oppositional Senate holding seats open for years to outlast a president—there was no such precedent regarding midterm elections, particularly when both the Senate and the White House were controlled by the same party.

  One Supreme Court reporter expected liberals to try to defeat Kavanaugh’s nomination as they had defeated Robert Bork’s but cautioned, “Pulling off a sequel like that would seem to require all the plot twists, special effects and movie magic that Kavanaugh’s antagonists can muster.”29

  That was precisely the model progressive activists
had in mind.

  Conservatives had been blindsided by the well-financed and well-organized political campaign against Robert Bork’s nomination in 1987, but by the time of the Kavanaugh confirmation they had learned the techniques pioneered by the left and had invented a few of their own. Now that the Supreme Court seat that had been denied to Bork was open again, they were ready.

  The Judicial Crisis Network—originally called the Judicial Confirmation Network—was established in 2005 to rectify the imbalance in confirmation battles that was revealed with Bork’s nomination.30 People for the American Way (PFAW) had dropped a hundred thousand dollars for cable TV spots, far more than the entire budget of the pro-Bork Coalitions for America.31 While PFAW was buying thirty-thousand-dollar full-page ads in the New York Times, Concerned Women for America could afford only two ads in small newspapers at about four hundred dollars apiece. The heavily outgunned pro-Bork forces were limited to grassroots work, on the cheap, their leaders licking their own envelopes for mass mailings. The liberals, by contrast, were able to carpet-bomb the political battlefield through the major media.32

  The one-sidedness of the fight was the result, in part, of a deliberate decision of the Reagan administration not to engage on the same terms. After Gregory Peck took to the airwaves to defame Judge Bork, both Clint Eastwood and Charlton Heston offered to appear in a counter-ad. The White House turned them down. Bork’s many former clerks working in the Department of Justice, lawyers who knew his record better than anybody, were explicitly forbidden to defend him publicly.33 Such advocacy was considered unseemly.

  Since the Bork disaster, the right had recognized that refusing to fight on the new terms would guarantee defeat, and the attacks on Clarence Thomas’s nomination showed how savage those new terms could be. The Marquess of Queensberry Rules were out. A powerful media and surrogate campaign was the only way to combat the inevitable onslaught from the left.