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

by Mollie Hemingway

  On and on it went. Senator Tillis cited an NBC News report that the disruptions were a “coordinated effort by Senate Dems on the Judiciary Committee, and that it was discussed during the holiday weekend on a call organized by Schumer,” casting suspicion on the spontaneity of the protests.24 Schumer was unusually involved in the process, not trusting Feinstein to handle the political machinations he felt were needed. Senator Christopher Coons, a Democrat from Delaware, later told Politico, “It was important that we lay down a marker that this is not a normal hearing.” Senator Durbin said they wanted to “singl[e] out the hearing as something unusual.”25 They succeeded.

  Appalled by the spectacle, Senator John Cornyn of Texas decried the “mob rule” that was marring the hearings and added that it was “hard to take [the objections] seriously when every single one of our colleagues in the Senate Judiciary Committee on the Democratic side have announced their opposition to this nominee even before today’s hearing.”26 Technically, Coons had not announced his opposition yet, but the point stood.

  It took nearly an hour and a half, with dozens of interruptions, for Grassley to get through his ten-minute opening statement. Feinstein followed with hers, declaring that the confirmation battle was about abortion. She went on to list a few other issues, such as gun rights, attributing the anxiety of so many to the “pivotal” character of the seat Kavanaugh would fill. “Behind the noise,” she said, “is really a sincere belief that it is so important to keep in this country, which is multi-ethnic, multi-religious, multi-economic, a court that really serves the people and serves this great democracy.” Grassley’s hard-charging judicial aide Mike Davis leaned over to Feinstein’s chief of staff, Jennifer Duck, and asked if her boss approved of the protesters’ behavior. He was told she did, but the senator known for her collegiality looked mortified.

  The interruptions angered the Republicans, and many Democrats appeared uncomfortable as well. Leahy lashed out after one protester on his own side interrupted him. Durbin acknowledged that such protests must be difficult for Kavanaugh’s children to witness, but called them “the noise of democracy.”

  Senator Mike Lee pointed out that such anxiety over any single nominee reveals what is wrong with the courts and offered a brief lesson on the history of Supreme Court confirmation hearings. Justice Louis Brandeis was the first Supreme Court nominee to have a public hearing, in 1916. While Brandeis was opposed for being Jewish, he was also opposed for his progressive views and his history of basing decisions not on the law but on the social sciences.

  Brandeis himself didn’t even attend his own hearing. It was not until 1939 that a nominee, Felix Frankfurter, would appear in person at a confirmation hearing. Senators were again concerned about the nominee’s politics—specifically, Frankfurter’s defense of the violent anarchists Sacco and Vanzetti in Massachusetts.

  Lee reviewed various hearings, noting that senators were always trying to get judges to talk about specific cases, while nominees always refused on the grounds that they could not comment on an issue that might come before them on the Court. He brought up Justice Scalia’s refusal even to say whether the foundational decision establishing judicial review, Marbury v Madison, was settled law, for which he was roundly derided.27 Yet, Lee noted, in the previous term the Supreme Court had considered a case involving Marbury. He also referred to the “Ginsburg standard,” by which the nominee Ruth Bader Ginsburg declined to offer any previews, forecasts, or hints about her views, refusing to answer a remarkable sixty different questions. Lee continued:

  If Senators repeatedly ask nominees about outcomes, then the public will be more entitled—or at least more inclined—to think that judges are supposed to be outcome-minded, that that is supposed to be their whole approach to judging, that that’s supposed to be what judging is in fact about. But this, of course, undermines the very legitimacy of the courts themselves, the very legitimacy of the tribunal you have been nominated by the president to serve on. Over time, no free people would accept a judiciary that simply imposes its own policy preferences on the country, absent fidelity to legal principle. There’s a better way for the Senate to approach its work. This process, in my opinion, should be about your qualifications, about your character, and, perhaps most importantly, about your approach to judging, your own view about the role of the federal judiciary. It should not be about results in a select number of cases.

  Back and forth the senators went until it was time for Kavanaugh to be introduced. Former Secretary of State Condoleezza Rice, Senator Rob Portman, and Lisa Blatt, a high-powered liberal feminist lawyer—all of them longtime friends and colleagues—took turns singing his praises.

  In his opening statement, Kavanaugh reflected on his background, his judicial philosophy, and his optimism. “I live on the sunrise side of the mountain, not the sunset side of the mountain,” he said. “I see the day that is coming, not the day that is gone. I am optimistic about the future of America. I am optimistic about the future of our independent judiciary.” That image was taken from a painting in George W. Bush’s Oval Office, Rio Grande, a West Texas landscape by Tom Lea, which the president liked to refer to. The idea of the “sunrise side of the mountain” stuck with staffers, particularly in the heavy days following September 11. Kavanaugh’s genuine optimism encouraged his clerks and others involved in the confirmation battle. He had worked relentlessly, remembered to thank those assisting him for their good work, and brought pizzas to staffers working long nights and weekends.

  Kavanaugh came into the first day of hearings determined to remain positive, but by the end of the day the hearings had turned hostile. Raj Shah counted sixty-three interruptions from Senate Democrats, mostly related to demands for more of Kavanaugh’s irrelevant paperwork and other trivial delaying tactics that had nothing to do with evaluating his substantive qualifications.28 More than seventy protesters were arrested.

  Those protesters didn’t arrive spontaneously. Planned Parenthood Action Fund flew in “storytellers” from as far away as Alaska and North Dakota. Winnie Wong, a senior advisor to the Women’s March, explained their carefully coordinated messages. Members going into the hearing room were given “a script where we suggest certain messaging that may resonate more.” The storytellers’ travel and accommodations were paid for, as were their legal aid and bail if they were arrested, which was generally the goal. Later in the hearings, the organizers of the protesters—the Women’s March and the Center for Popular Democracy—were warning activists that being arrested three times might lead to a night in jail. The group raised sums of more than six figures to finance the protests. “This is well-organized and scripted,” said Wong, “This isn’t chaos.”29

  Outside the hearing room, one of the stranger social media frenzies was sparked by televised images of Kavanaugh’s former clerk Zina Bash sitting behind him as he testified. Her arms were crossed, the thumb and forefinger of her right hand touching to form something like an “okay” gesture. An urban legend, nurtured on the internet, has it that the “okay” gesture signals “white power.” Eugene Gu, a prominent anti-Trump activist with 271,000 Twitter followers, tweeted, “Kavanaugh’s former law clerk Zina Bash is flashing a white power sign behind him during his Senate confirmation hearing. They literally want to bring white supremacy to the Supreme Court.” Some fourteen thousand people retweeted Gu’s absurd and baseless accusation.30

  Bash’s husband, a U.S. attorney, took to Twitter himself to defend his wife’s honor and point out how ludicrous the charge was, adding that his wife is half-Mexican and half-Jewish and her grandparents were Holocaust survivors.31 Nonetheless, many major news outlets, including Time and the Washington Post, reported on the conspiracy theory, fanning the flames on social media.32 If the first day of the Kavanaugh hearings was a circus, the “white power” Twitter follies proved to be the most appalling sideshow.

  On Wednesday, Senator Leahy began a line of questioning that would continue over the next two days. He wanted to know about emails Kavanaug
h had received when he was at the Bush White House from Manuel Miranda, then a Senate Judiciary Committee staffer. In 2001, Miranda discovered sensitive Democratic memoranda that had been left on a server shared with Republicans. One of them, which was leaked in 2003, revealed that Democrats were blocking Miguel Estrada’s confirmation to the D.C. Circuit because he was Hispanic.

  Kavanaugh had already been asked in his appellate court confirmation hearings in 2004 and 2006 if he knew about this security lapse. He said he didn’t and wanted to make it clear that he had never seen the memoranda. If he received information from those documents, he said, he did not know how it was obtained. Now, on day two of his Supreme Court confirmation hearings, he was asked the same questions.

  Leahy began, ominously, by asking if he wanted to change anything from his previous testimony. Kavanaugh said he did not. Leahy noted that in previous hearings he had been asked more than a hundred questions about the memoranda and had denied knowing anything about how Miranda gained the information. “My question is this: Did Mr. Miranda ever provide you with highly specific information regarding what I or other Democratic senators were planning on asking certain judicial nominees?” Leahy asked this question twice. Kavanaugh explained that such exchanges of information were quite common between staff on the Senate Judiciary Committee and the White House during a confirmation process.

  Leahy then informed Kavanaugh that among the documents marked “committee confidential” was “evidence that Mr. Miranda provided you with materials that were stolen from me. And that would contradict your prior testimony.” He asked Grassley to make the documents public. During the Gorsuch confirmation, Grassley had asked senators to alert him if they wanted any confidential documents released for use in the hearings. For Kavanaugh, Democratic senators were making outlandish requests, such as every document related to executive power or the environment. When Senator Klobuchar asked for four specific and relevant documents to be released for the hearing, Grassley made a show of thanking her for following an appropriate process. The Democratic strategy had been obstruction at all costs, so Klobuchar was annoyed at repeatedly being singled out for being cooperative and reasonable. At one point, Democratic staff accidentally shared with Republican staff their “hot list” of Kavanaugh documents they would eventually publicize through different senators. After sending the email that identified all of the documents they felt were most sensitive, the Democrats told the Republican staff to ignore the email. It was valuable information, even if Republican staff had already flagged most of the same documents. In any case, for Leahy’s request, Grassley obtained clearance from both the Bush and Trump White House staffs to make the documents available the next day.

  Leahy’s smoking gun was nowhere to be found. The emails contained discussions about judicial nominees and required some contextual parsing, but nothing indicated that Kavanaugh had reason to suspect that Miranda had obtained the information improperly.33

  In response to questions from Senator Graham, Kavanaugh twice mentioned a book that would have more significance in the weeks to come. In the sixth grade he had studied To Kill a Mockingbird, Harper Lee’s novel about a man wrongly accused of rape. He kept his old copy of the book in his chambers as a reminder of the importance of not judging others and of empathizing with the accused and downtrodden.

  The next attempt to paint Kavanaugh as a perjurer was a baffling line of questioning by Senator Kamala Harris, a former prosecutor who was preparing to run for president. She began by asking Kavanaugh if he had ever discussed Robert Mueller, the independent counsel then investigating the Trump presidential campaign, with anyone. He explained that he used to work with Mueller. She asked if he had ever discussed Mueller’s investigation. He said he had. Then she asked repeatedly if he had ever had any discussions with employees of Kasowitz, Benson & Torres, the firm of President Trump’s personal lawyer, Marc Kasowitz. As though she had him right where she wanted him, Harris warned the judge dramatically, “Be sure about your answer, sir.”

  Kavanaugh was utterly confused. While he didn’t think he even knew anyone at the Kasowitz firm, he was alert to the danger of a perjury trap. “Is there a person you’re talking about?” Kavanaugh asked haltingly.

  “I’m asking you a very direct question,” Harris snapped. “Yes or no?”

  “I don’t know everyone that works at that firm,” Kavanaugh said.

  Implying that she had damaging information, the senator said, “I think you’re thinking of someone and you don’t want to tell us.”

  A Democratic staffer told reporters that they had reason to believe Kavanaugh had had conversations with people at Kasowitz’s firm, and a compliant press ran with the story that the nominee appeared to have committed perjury.34 “Kavanaugh Stumbles,” read the headline in Politico.35 “Harris Lands First Blow on Kavanaugh,” announced Roll Call.36 The coverage of Harris herself verged on fawning. The Washington Post’s Jennifer Rubin gushed about a “break-out moment” that showed “her prosecutorial skill” and made her “an instant Democratic heroine.” She opined further, “Kavanaugh looked confused, if not nervous. He hadn’t seen this coming.”37

  But in fact he had seen it coming, which was why he was so cautious. Senator Ted Cruz had warned him that Democrats would try to trick him into inconsistencies. In other lines of questioning, Kavanaugh had responded with marked openness. Being on offense was part of his strategy from the beginning. While he followed the Ginsburg precedent of not giving his views on particular cases, he eagerly engaged even the most hostile questioner. He was happy to talk at length about the Federalist Papers, his own decisions, the doctrine of stare decisis—anything but how he would vote in a specific case. He was not a man of one-sentence answers. But he recognized that Harris was trying to lay a perjury trap. It didn’t matter that her questions would have been unacceptable and unethical in a courtroom. He had to be careful not to say anything that could be perceived as untrue. Who knew who might have just been hired at Kasowitz, Benson & Torres?

  It turned out that Kavanaugh had not talked to anyone at Kasowitz, Benson & Torres, and Harris never offered any evidence of such a conversation. The White House had set up a war room down the hall from the hearing room, manned by Kavanaugh’s team, where they quickly determined that Harris must have been fishing for conversations with Edward McNally, a partner in the firm’s New York office who had worked in the Bush White House when Kavanaugh did. They tracked him down and confirmed that Kavanaugh had not spoken to him about the Mueller investigation. The law firm itself denied that any of its personnel had spoken to Kavanaugh, and the judge then testified under oath that the answer to Senator Harris’s question was a straightforward “no.”

  Senator Whitehouse had an ax to grind against “shadowy dark-money front groups” participating in the judicial appointment process. “Here’s how the game works,” he said in his opening statement. “Big business and partisan groups fund the Federalist Society, which picked Gorsuch and now you.”

  He went on:

  Then big business and partisan groups fund the Judicial Crisis Network, which runs dark-money political campaigns to influence senators in confirmation votes, as they’ve done for Gorsuch and now for you. Who pays millions of dollars for that and what their expectations are is a deep, dark secret. These groups also fund Republican election campaigns with dark money and keep the identity of donors a deep, dark secret. And of course, 90 percent of your documents are, to us, a deep, dark secret.

  Behind him his aides hoisted a sign stating that JCN had spent $17 million in connection with the Garland and Gorsuch nominations.38

  Whitehouse’s horror at the Federalist Society had arisen suddenly. Like every sitting justice of the Supreme Court, he himself had spoken at an event hosted by the Federalist Society.39 His outrage over “dark money”—a pejorative term for donations made according to section 501(c)(4) of the Internal Revenue Code, which does not require an organization to disclose the identity of its donors—was similarly selective
. The League of Conservation Voters, a 501(c)(4) organization and “dark money heavyweight,” according to the Center for Public Integrity, used its PAC to endorse Whitehouse and was his single largest donor.40

  Senator Whitehouse told only half the story. In an article in Politico in January 2019, “Why There’s No Liberal Federalist Society,” the law professor Evan Mandery bemoaned how sophisticated the conservative legal network has become. He is correct that the Federalist Society dwarfs its closest liberal counterpart, the American Constitution Society (ACS), in both breadth and effectiveness, but he incorrectly assumes that the right is therefore Goliath to the left’s David. Quoting the ACS’s president, Caroline Frederickson, on the Supreme Court decision Bush v Gore, which shocked liberals into starting the ACS, Mandery unwittingly acknowledges the left’s long-standing dominance in the courts: “ ‘Courts that the left had taken for granted since [Chief Justice Earl] Warren had handed the presidency to Bush.’ ” He also admits that the American legal education system acts as a “counterweight” to the Federalist Society: “There’s no question that law school faculties are overwhelmingly liberal. . . .”41

  The progressive journal Mother Jones has recognized as much, describing the interconnected web of liberal groups from the National Association for the Advancement of Colored People (NAACP) and the American Civil Liberties Union (ACLU) to the Sierra Club and the League of Women Voters42 as a “vast, well-funded movement that’s far older and far more influential than the Federalist Society. Its only problem is that it doesn’t have a name.”43

  In the battle over Kavanaugh’s confirmation, the most visible liberal organization was Demand Justice, formed only a few months before Kennedy’s retirement by veteran Democratic operatives with experience in the Hillary Clinton campaign and the Obama administration. If money given to the Judicial Crisis Network is “dark” because JCN’s annual 990 tax filings don’t disclose its donors, Demand Justice’s bank account is a black hole. “Fiscally sponsored” by the Sixteen Thirty Fund, an under-the-radar liberal intermediary group that passes money from donors to dozens of liberal organizations, Demand Justice doesn’t even file the disclosure forms that “dark money” groups do. Senator Whitehouse couldn’t put it on one of his pie charts if he tried. Both the donors to Demand Justice and the amount of money they contribute are completely invisible.44