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

by Mollie Hemingway

  The Judicial Crisis Network, agreeing with Kavanaugh about the importance of the first forty-eight hours, was ready on day one with a twelve-million-dollar war chest.34 It had prepared videos and websites supporting each of the leading candidates before the nominee was announced. The paid advertising that the Reagan White House eschewed has become an important feature of judicial confirmations. It is a means of communicating with the average American, signaling strength to the politicians who will determine the nomination’s fate, and grabbing headlines.

  JCN immediately launched the website ConfirmKavanaugh.com and a 1.4-million-dollar ad campaign in the key states of Alabama, Indiana, North Dakota, and West Virginia. Complementing the advertising was a targeted grassroots outreach to key senators. But the most important work of JCN, which was the hub of expertise on judicial issues and the confirmation process, may have been shaping the message of the confirmation campaign by getting its own spokesmen on the air and by coordinating the many other conservative groups that cared deeply about the Court.

  Activists from the Tea Party Patriots, the Susan B. Anthony List, Americans for Prosperity, and other groups were already going door to door talking about the importance of the upcoming 2018 elections. Senate elections had been a key part of their strategy since 2014, precisely because of judicial nominations. They wanted their field-workers to be able to add the Kavanaugh confirmation to their list of talking points and were grateful to have allies they could trust to vet the nominee’s philosophy.

  Although the initial effort to defeat Kavanaugh was vigorous, it flailed about in search of a message. On July 11, the Washington Post broke the news that he incurred credit card debt when purchasing group tickets for Washington Nationals baseball games.35 This scandal, if you could call it that, was covered so assiduously that the left-wing news service ProPublica asked the public to help stalk Kavanaugh at sporting events: “Did you see Judge Kavanaugh at a game? Did you attend a game with him? Do you have any photos, and if so, will you send them our way?”36 The Yale Daily News went so far as to report that as a college student, Kavanaugh didn’t put toppings on his pizza and occasionally ate pasta with ketchup.37

  The articles were widely mocked—the law professor and commentator Orin Kerr joked that Kavanaugh’s taste in Italian food showed he was “no Scalia clone, clearly”—and Twitter users joked about other silly scandals, using the hashtag #KavanaughScandals: “He neglected to add the plus 4 zip codes on all his Christmas cards,” “Didn’t rewind a VHS before taking it back to Blockbuster,” and “Sources say that Kavanaugh once failed to turn off his brights for an oncoming vehicle.” The satirical news site The Onion ran an article headlined “Kavanaugh Nomination Falters after Washington Post Publishes Shocking Editorial Claiming He Forgot Daughter’s Piano Recital.”38

  The organized opposition included a letter-writing campaign. But that hit a snag when it was revealed that twenty-one identical letters condemning Kavanaugh were published in twenty-one different newspapers, each under a different name without the knowledge of the purported signer. While no one claimed responsibility, the episode suggested that opposition to Kavanaugh was centrally coordinated rather than a popular groundswell.

  The problem for the opposition was that Kavanaugh was a remarkably straight arrow in and out of the courtroom. His rulings were based on principle, whether they would help liberals or conservatives, as when he ruled in favor of the pro-abortion group Emily’s List in its political speech battle with the Federal Election Commission.39 Deputy Press Secretary Raj Shah was in charge of White House communications for the confirmation campaign. Within three days of the nomination, a war room was set up in the Eisenhower Executive Office Building staffed by former clerks, including Zina Bash, Claire Murray, and Chris Michel. Kerri Kupec was brought in as a spokeswoman from the Department of Justice. The office had eight computers, a wall of filing cabinets that were quickly filled with reams of court decisions, and a snack counter that was stocked on Monday and completely ransacked by the end of Friday.

  The office’s early work was mostly responding to spurious allegations—one participant called it playing “whack-a-mole.” Geoff Bennett and Leigh Ann Caldwell of NBC tweeted that Justice Kennedy had negotiated his retirement with Trump to secure Kavanaugh’s nomination. After calls for a congressional investigation, the reporters backed away from the story, but not before major media outlets were openly discussing it. Conspiracy theories cooked up on the political fringes—like the Center for American Progress’s yarn about Kennedy’s son and Deutsche Bank—made their way into the mainstream.40

  The Trump presidency had been profoundly disorienting to the media and the Washington establishment. Many had not thought it possible for someone whose views were so different from theirs to win the presidency. By July 2018, a Supreme Court appointment was hardly necessary to fuel the media hysteria that had become a feature of American life—Trump was a Russian agent, Trump was a threat to NATO, Trump’s confrontation with China over its unfair trade practices would plunge the United States into recession.

  In such an atmosphere, it became popular to speculate that Kavanaugh was Trump’s “get-out-of-jail-free card” because of a law review article in which he had written that presidents should not be encumbered by investigations while they were in office. Kavanaugh had served on the special counsel staff that investigated President Clinton, but in 2009, during the presidency of Barack Obama, he wrote, “This is not something I necessarily thought in the 1980s or 1990s. Like many Americans at that time, I believed that the President should be required to shoulder the same obligations that we all carry. But in retrospect, that seems a mistake.”41

  That month the feminist group UltraViolet attempted to link Kavanaugh to allegations of sexual harassment against Judge Alex Kozinski of the Ninth Circuit, for whom Kavanaugh had clerked more than a quarter-century earlier. Why hadn’t the young Kavanaugh reported the sexual predations that had now, so many years later, come to light? UltraViolet’s insinuations of complicity in sexual misconduct eventually evaporated when no one who worked in Kozinski’s chambers with Kavanaugh—including a female intern—could remember seeing any inappropriate behavior.42

  If charges of tolerance of sexual crimes would not stick, there was always racism, and an activist group called Demos was ready with a counterintuitive theory to convict Kavanaugh of that ugly offense: “Kavanaugh has also made it clear that he buys into the problematic trope that the Constitution should be ‘colorblind’—a shorthand for the view that race-conscious efforts to remedy our long history of slavery, Jim Crow segregation, and state-sanctioned violence against people of color are themselves discriminatory.”43

  The denizens of the left-wing fever swamps took it from there. In a “Rise Up for Roe” speaking tour, which featured Chelsea Clinton, Alyssa Milano, and Planned Parenthood’s Cecile Richards, the Teen Vogue columnist Lauren Duca fingered Kavanaugh for almost every mortal sin in the progressive catechism, telling an audience in Los Angeles, “This is a man that we know, from the way he has ruled in the past, that he wants to rule over this country with ‘textualist originalist’ mindset, which is a very safe way of saying, ‘white supremacist patriarchy.’ ” Kavanaugh’s nomination, she added, “marks the nativism, the ugliness, the lack of compassion for the marginalized, the authoritarianism, all of that that stains that on American life, like the cum stains that are probably all over my room at the Holiday Inn Express.”44

  The manic search for anything negative related to Kavanaugh included requests by major media organizations for records of 911 calls from his home. The press submitted public information requests to the town of Chevy Chase for any emails of Ashley Kavanaugh’s that included, among others, the words “abortion,” “gun,” “gay,” “liberal,” and “Brett” and all of her email correspondence with her husband. It was a ridiculous request that violated personal privacy and had nothing to do with Kavanaugh’s qualifications. It was also costly. The town had to hire lawyers to dig thr
ough emails, ultimately turning up nothing more than a few newsletters Ashley had forwarded to her husband for proofreading.

  Kavanaugh’s team of clerks was quickly disabused of the notion that the confirmation process would be dignified. The special-interest opposition was intense, the press coverage was crazy, and many Democrats would not even meet with him.

  Laurence Tribe’s God Save This Honorable Court had helped to change the philosophy of confirmations in the 1980s. In the early years of the George W. Bush administration there was a major change in their procedure, and Tribe had a role in that as well.

  It had to do with the filibuster, which is what happens when a vote to end debate, called cloture, does not pass. The Senate cannot hold a final vote on a nomination without either unanimous consent or a vote for cloture. Under Senate rules, a senator does not actually have to keep talking, like Jimmy Stewart in Mr. Smith Goes to Washington, to keep a filibuster going. It’s enough simply not to pass a cloture vote. Because sixty votes were needed for cloture, the minority party could block a majority-supported action without resorting to reading the phone book.

  The filibuster had been part of the Senate’s legislative process since the early nineteenth century. But the cloture rule as a means to end debate came about only in 1917 and did not apply to nominations until 1949; in theory, then, debate on a nomination could have gone on forever. The Senate never took a cloture vote on a nominee until 1968, and no majority-supported nomination was defeated with a filibuster until 2003. Even Clarence Thomas, confirmed with only fifty-two votes and without support of the Senate Judiciary Committee, was not subjected to the sixty-vote threshold of a cloture vote. Filibustering judicial nominations simply wasn’t done.

  After Bush’s election in 2000, the Senate Democratic leader, Tom Daschle, announced that his caucus would use “whatever means necessary” to defeat Bush’s nominations.45 When John Ashcroft, himself a former senator, was nominated to be attorney general, forty-two Democrats voted against him. Senator Chuck Schumer called it a “shot across the bow.”46 Daschle said he wanted to assemble enough votes to signal that a filibuster could have been waged, even though some who voted against Ashcroft nevertheless thought he deserved an up-or-down vote.

  In April 2001, the Democrats held a retreat in Pennsylvania to discuss how to change the rules of the confirmation process to defeat Bush’s judicial nominations. Tribe spoke at the retreat, along with Professor Cass R. Sunstein of the University of Chicago Law School and Marcia D. Greenberger, the co-president of the National Women’s Law Center. They helped the Democrats come up with strategies for blocking qualified candidates who were not liberal, one of which was dramatically to change the use of the filibuster.47

  The next month Bush made eleven nominations to appeals courts. They were never confirmed in that Congress. After the Democrats lost seats in the 2002 elections, they began forcing cloture votes, a tactic that some members were reluctant to pursue. Ten of Bush’s nominees endured twenty-one filibusters in that Congress.

  Miguel Estrada, nominated to the D.C. Circuit, was the most prominent victim of the new strategy. A leaked Democratic Senate strategy memorandum revealed that liberal groups had met with Senate Democrats in 2001 and identified Estrada as “especially dangerous because he has a minimal paper trail, he is Latino, and the White House seems to be grooming him for a Supreme Court appointment.”48 Democrats could not allow Republicans to put the first Hispanic on the Supreme Court, so they filibustered Estrada seven times, eventually forcing him to withdraw.

  Frustrated with the weaponization of Senate procedure, Republicans began talking about getting rid of the filibuster. But senatorial inertia took over when a bipartisan “Gang of Fourteen” senators brokered a deal to keep the filibuster option.49

  They agreed to finally hold a vote on three of the filibustered judges—Janice Rogers Brown (D.C. Circuit), William Pryor (Eleventh Circuit), and Priscilla Owen (Fifth Circuit)—saving the filibuster for the remainder of that Congress for undefined “extraordinary circumstances.”50

  The nomination of Samuel Alito to the Supreme Court in November 2005 tested the strength of the Gang of Fourteen alliance. He was widely considered to be more reliably conservative than the unpredictable Sandra Day O’Connor, whom he would replace, and liberals were worried. The New York Times ran a story questioning whether Alito’s father really was an immigrant from Italy, and genealogists were hired to investigate the conspiracy theory. (The Italian government eventually presented Alito with a copy of his father’s birth certificate.) His nomination sparked a filibuster attempt by Democrats worried that the Court would shift to the right. Although twenty-five senators, including Joe Biden, Barack Obama, Hillary Clinton, and Ted Kennedy, voted against cloture, the Gang of Fourteen held firm in opposing the filibuster. While Alito was eventually confirmed by a vote of fifty-eight to forty-two, fourteen of his opponents nevertheless voted to let the nomination proceed to a floor vote.

  A second nomination that tested the Gang of Fourteen’s compromise was that of Brett Kavanaugh, President Bush’s staff secretary, first nominated to the D.C. Circuit in July 2003. Democrats, incensed that a former Whitewater prosecutor and a close ally of a president they considered illegitimate might sit on the second-most important court in the land, stalled his nomination. After Bush re-nominated him in 2005, he submitted to a second hearing before the Senate Judiciary Committee, and the Gang of Fourteen met to discuss the nomination. Senator Lindsey Graham reported that they couldn’t find “extraordinary circumstances” to oppose him. All but two of the Gang of Fourteen voted for cloture, and Kavanaugh was confirmed by a margin of fifty-seven to thirty-six.

  At the beginning of the 113th Congress in 2013, Democrats were eager to fill a number of vacancies on the D.C. Circuit. Republicans negotiated a temporary deal reducing the delays on votes for district court and sub-cabinet positions, and Senator Harry Reid, the majority leader, took full advantage of it, confirming forty-three judges and twenty-seven executive nominees. A few months later, however, to push through Obama’s appointments to the D.C. Circuit, the Democratic majority abolished the filibuster altogether for nominations below the Supreme Court level. Pro-abortion activists were afraid that abolishing the filibuster for Supreme Court nominations would come back to haunt them under the next Republican president, so it was left in place.

  More importantly, they changed the rules with a bare majority of Senate votes rather than the usual two-thirds majority—the so-called “nuclear option.” Reid had maligned this method of changing the rules when Republicans were considering it during the Bush administration. The Gang of Fourteen had worried about opening the floodgates to rule changes with only fifty-one votes, and the Republicans had refrained.

  After Reid and the Democrats exercised the “nuclear option,” Senator McConnell, the minority leader, warned, “I say to my friends on the other side of the aisle, you’ll regret this. And you may regret it a lot sooner than you think.”51 Only a year later, Republicans took back the Senate. Some members wanted to bring back the filibuster, but McConnell persuaded them not to. Limiting their own majority’s influence in that way, given the certainty that the Democrats would eliminate the filibuster again when they regained a majority, would be political malpractice. And those who were squeamish about eliminating the filibuster had to acknowledge that the effect of the rule change had been to return the Senate to the way it had operated prior to 2003, when filibusters were generally regarded as off the table for judicial nominations.

  It only got worse for the Democrats when Trump shocked Washington by winning the 2016 election. Moving through the classic stages of grief, Democrats hovered between denial and anger. A “resistance” formed, rioting in the streets, pressing electors to change their votes, and concocting conspiracy theories about Trump and the Russians.

  The “resistance” spilled over into the Senate, where Democrats delayed every cabinet nomination. Even without a filibuster, the cloture process became a way to u
se up the currency of the Senate: floor time. In the six administrations before Trump’s, the majority leader had to file cloture to advance a nomination in the first two years of a presidency only twenty-four times combined. In Trump’s first two years, McConnell had to file cloture 128 times.

  The nomination of Neil Gorsuch, submitted eleven days after Trump’s inauguration, went more smoothly than most Senate Republicans had expected. The new administration was still finding its way, dealing with incessant leaks, strong resistance within its own party, and the delayed confirmation of key staff members. The Democrats attempted to misconstrue Gorsuch’s record, most famously seizing on the “frozen trucker” case, in which Gorsuch had ruled that a trucker fired for leaving his disabled trailer to seek shelter from the cold was not entitled to reinstatement. Calling him heartless for asking not whether the employer’s decision was wise or kind but whether it was legal, Democrats pilloried him for stating that it was Congress’s job to change the law, not the courts’. They also charged that he had plagiarized part of his dissertation and had posed misogynistic questions in a legal ethics course. But when the author he had quoted defended his use of her work and his former students pointed out that his discussion questions were taken from the teachers’ manual, those attacks faded away.

  His nomination hit only two real snags. First, in a conversation with Senator Richard Blumenthal, he was asked about the president’s tweets criticizing a judge who had ruled against him. Gorsuch expressed solidarity with his fellow judge without criticizing the president. Blumenthal mischaracterized his statement as being critical of Trump. The president was deeply concerned, but McGahn had been in the room and knew that Blumenthal’s description was inaccurate. He pleaded with the president to withhold judgment for twenty-four hours, and in that time was able to get things back on track.