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

by Mollie Hemingway

  The Sixteen Thirty Fund does file an annual Form 990, but it does not reveal the identities of its donors. Although its budget dwarfs that of the Judicial Crisis Network and the Federalist Society combined, it has failed to pique Senator Whitehouse’s interest. In 2017 it brought in $79 million and ended the year with $43 million in assets, growing by an astonishing 1,547 percent in only eight years.45 In pursuit of its cryptically worded mission—“promoting social welfare, including, but not limited to, providing public education on and conducting advocacy regarding key policies”—the fund bankrolls liberal groups focused on everything from judicial appointments, organized labor, and abortion to Senator Whitehouse’s own favorite dark-money heavyweight, the League of Conservation Voters. They also fund Majority Forward, a 501(c)(4) group closely tied to Senator Chuck Schumer’s Senate Majority PAC. Majority Forward alone accounted for one-third of all the dark-money spending in the 2018 election, giving liberals a comfortable dark-money lead over conservatives.46

  The Sixteen Thirty Fund is managed by Arabella Advisors, a philanthropy consulting firm in Washington, D.C., that works with high-dollar liberal donors and nonprofits. Arabella manages four nonprofits, including the Sixteen Thirty Fund, reporting total revenues of $1.6 billion and expenditures of a whopping $1.1 billion since 2013.47 Arabella was founded and is still run by Eric Kessler, who worked on conservation issues in the Clinton White House and was, coincidentally, the national field director for the League of Conservation Voters.

  If Senator Whitehouse had been interested in teasing out the many interconnected threads of that dark-money web, he would have learned that Kessler is also the president of the Sixteen Thirty Fund and the chairman of the board of the New Venture Fund, its sister group in the Arabella orbit, which has sponsored more than two hundred projects and reports an annual revenue of $358 million. These entities are linked to a dizzying array of anti-Kavanaugh organizations, including the Sierra Club, the Leadership Conference on Civil and Human Rights, the Center for American Progress, Color of Change, Health Care for America Now, Health Care Voter, and the NAACP.48 The Center for Popular Democracy, one of the groups promoting the protests in the Dirksen halls during the hearings, received substantial funding from the New Venture Fund.49

  Political and special interest groups have every right to protect the anonymity of their donors, of course. Indeed, there are strong arguments—some of them made by those sitting on the Supreme Court in recent years—that the First Amendment limits the ability of the government to force their disclosure. But Senator Whitehouse’s pursuit of a vendetta against conservative nonprofits while ignoring the considerably more opaque funding streams of organizations on his side reveals his true interest. He did not advance the cause of transparency per se, but used the disclosure of donors as a weapon against his political opponents.50

  On Thursday, September 6, Cory Booker stunned the committee by announcing even before questioning began that he would violate Senate rules by releasing emails that had been marked “committee confidential.” He tweeted a link to documents that he said revealed troubling racial messages but that actually consisted of discussions about security screening procedures in the immediate aftermath of 9/11 and whether they should include race and national origin.51 In fact, Kavanaugh opposed racial profiling. In an email to a colleague in the White House counsel’s office in 2002, Kavanaugh had written:

  The people who favor some use of race/natl origin obviously do not need to grapple with the interim question. But the people (such as you and I) who generally favor effective security measures that are race-neutral in fact DO need to grapple—and grapple now—with the interim question of what to do before a truly effective and comprehensive race-neutral system is developed and implemented.

  The year after Kavanaugh wrote that email, the Bush administration issued guidance prohibiting law enforcement agencies from using racial profiling.52

  The emails were a dud, but Booker—also preparing to announce his run for the presidency—tried to call attention to his breaking of Senate rules. “I knowingly violated the rules put forward,” he said, adding that he realized he was engaged in civil disobedience and would accept the consequences. He practically begged the Republicans to try to expel him from the Senate and remarked that this was the closest he would come to an “I am Spartacus” moment. Since there was nothing to connect Booker’s situation with the famous scene from the 1960 Kirk Douglas movie, in which a group of slaves all claim to be the outlaw Spartacus to help the real Spartacus avoid being crucified, the remark came across as silly, exposing the senator to no small amount of mockery. He was in no danger of expulsion, in any case, because, despite his self-accusation, he had not violated any rules. He had requested the day before that the documents in question be cleared for release, and staff worked through the night to clear them. Bill Burck had informed him at four o’clock that morning that he was free to release them, as Grassley had noted at the hearing just before Booker’s Spartacus moment.53

  Booker was intent on violating the rules, however, and he released what he believed to be confidential emails throughout the day. The grandstanding was unnecessary. “Had we been consulted on these universally released documents, we would have consented to their public disclosure,” Burck wrote in a letter.54 The White House and Senate staffs worried that Booker’s theatrics would make future nominees and administrations less willing to share information about nominees, which is the property of the administration. After the experiment with modern e-discovery procedures and providing digital documents that are easily searchable, the confirmation process might return to the closely guarded rooms of filing boxes of previous decades.

  Senator Blumenthal tried to embroil Kavanaugh in a controversy over President Trump’s harsh rhetoric. Reading tweets that criticized Justice Ruth Bader Ginsburg for her critique of him, Blumenthal asked if Kavanaugh agreed with the president that she was an embarrassment for making political statements about him. Kavanaugh said he wouldn’t get “within three zip codes” of a political controversy. It was Blumenthal’s questioning of Gorsuch about a different set of Trump tweets that caused the president to briefly waver in his support of the nominee. Kavanaugh navigated the minefield more nimbly, and it would pay off.

  After a long day of questioning that kept Senator Grassley up past his normally firm nine-o’clock bedtime, the public portion of Kavanaugh’s testimony closed after ten p.m. The nominee had testified for thirty hours across three days. The protesters and supporters went home, but the judge and the senators stayed for the closed portion of the hearing. The spirited debate about “committee confidential” documents obscured the fact that senators would have this opportunity to question the nominee on all manner of confidential topics, including work product, sensitive personal financial information, and other ethical or legal questions uncovered by the FBI background investigation. The group remained in closed session for about an hour. It is customary to continue the closed session for that long even if there are no concerns about a nominee’s record, so as not to call attention to nominees for whom there are confidential vetting concerns. The senators spent much of the time sparring with one another over things that had nothing to do with Kavanaugh. Senator Grassley, particularly disappointed with some members’ behavior, was in rare form. The closed session would be the occasion to ask about confidential allegations against a nominee or to raise concerns about his ethical behavior. No such allegations were mentioned during the closed session. Senator Feinstein did not even attend.

  The fourth day’s testimony was comparatively uneventful. Paul Moxley and John Tarpley, two members of the American Bar Association’s Standing Committee on the Federal Judiciary, explained their method for awarding Kavanaugh the ABA’s “well qualified” rating (unanimously). Then came a seemingly interminable parade of witnesses for and against Kavanaugh’s confirmation. Law professors, noted Supreme Court advocates, and former clerks spoke on his behalf, and the testimony of a few friends was intended
to put a human face on the judge.

  Then it was the opposition’s turn: young people, union members, a Methodist minister who wanted the government to force her church-employer’s insurance to pay for her IUD, and even Congressman Cedric Richmond, a civil rights leader who warned that Kavanaugh’s textualist approach to the law would threaten voting rights, education, and his favored criminal law policies. There was a woman with cerebral palsy who had been led to believe that Kavanaugh would take away her right to make her own medical decisions. (He had decided a case addressing how to manage care for wards of the state who were incapable of giving consent, a group to which this woman clearly did not belong.) The day ended with the Watergate figure John Dean testifying for the Democrats about Kavanaugh’s excessive deference to presidential authority. The hearings ended with a whimper, not a bang.

  “This week’s hearing lacked the sordidness of the Thomas hearing,” reported the Washington Times, “but made up for it in vitriol—both on the dais and in the viewing gallery. One Republican senator said he counted more than 200 protesters ousted over three days.”55 A major source of the hearings’ drama was political ambition. Ever since Joe Biden’s grandstanding during the Bork hearings, senators have been powerfully tempted to exploit a perch on the Senate Judiciary Committee for public attention. Senators Booker and Harris attracted the most attention with their antics, but Senator Klobuchar would do her share of aggressive self-marketing when the Judiciary Committee resumed its hearings after the nominee was accused of sexual assault. The presence of those three presidential hopefuls on the committee encouraged other candidates to sound off about the nomination as vociferously as possible, lest their competitors on the committee steal the limelight. Senator Elizabeth Warren, for example, conspicuously stopped by the lobby in Dirksen to express her support for the protesters.56

  Senator Jeff Merkley, who was considering a run for president but later decided against it, contributed to the partisan atmosphere with a litigious gesture. He filed a nuisance lawsuit against the president, the Senate majority leader, the chairman of the Senate Judiciary Committee, the Senate sergeant at arms and secretary, and Bill Burck. The Senate’s constitutional “advice and consent” responsibility was at risk, he alleged, because of a failure to supply senators with enough documents to assess the nominee thoroughly. The judge, an Obama appointee, let the frivolous suit die a procedural death.

  Even Justice Ruth Bader Ginsburg, the most celebrated liberal on the Supreme Court, lamented that Kavanaugh’s hearing was a “highly partisan show.” “The vote on my confirmation was ninety-six to three, even though I had spent about ten years of my life litigating cases under the auspices of the ACLU,” she told an audience at the George Washington University Law School on September 13. She reminded the audience that Antonin Scalia’s confirmation was unanimous, adding, “That’s the way it should be. . . . I wish I could wave a magic wand and have it go back to the way it was.”57

  Despite the circus-like atmosphere, Kavanaugh performed well enough that his confirmation was widely expected. “Brett Kavanaugh coasts toward Supreme Court confirmation despite document dispute, public protests” was USA Today’s assessment.58 Senator John Kennedy of Louisiana was so pleased, he declared, “I want to marry Brett Kavanaugh.”

  Senator Grassley announced that the committee would vote on the nomination one week later, on September 20. A handful of Democrats, however, knew that there was more to come. What followed would make the contentious hearings that Kavanaugh had already endured pale in comparison.

  CHAPTER FIVE

  All Hell Breaks Loose

  After the hearings, there was one more step before the Judiciary Committee could take its important next vote on the nomination. Kavanaugh had to respond to written “questions for the record” from members of the committee. Senators began posing written questions to Supreme Court nominees only in the 1970s. Scalia received three questions. Gorsuch received 324.

  And on the afternoon of Monday, September 10, Kavanaugh was asked to respond to a record-shattering 1,287 questions—more than all previous nominees combined. To keep the nomination on track, he would have to return his answers by Wednesday evening, a nearly impossible task.

  It was obvious the unheard-of number of questions was not submitted in good faith. Four of the ten Democrats on the committee had already announced they would vote against Kavanaugh, another four had indicated they were likely to vote against him, and the ranking member, Dianne Feinstein, had assured supporters in mid-July that she was ready to lead the opposition against the nominee, yet Democrats accounted for all but four of the questions. Kavanaugh’s supporters were convinced this was yet another delaying tactic by Democrats hoping that the nominee would be unable to respond by the deadline or would stumble into a perjury trap.

  Answering the questions began in the Department of Justice, where a team sorted questions by topic and distributed them to clerks in charge of each issue. Each clerk drafted answers based first and foremost on what had already been said at the hearing. Any new material would have to come from the judge himself and would have to be carefully expressed to avoid contradicting anything that had been said at the hearing or privately to a senator. They knew the senators would seize on any opportunity, fair or unfair, to allege perjury.

  The questions revisited all the topics that had been brought up in the hearings, from Kavanaugh’s views on abortion jurisprudence to his personal credit card debt, as well as tough new questions arising out of the hearings.

  For example, Kavanaugh was asked about an incident in which the father of a victim of the school shooting in Parkland, Florida, had approached him after his testimony in the hearing room. The judge had turned away and continued out of the room, an apparent snub that became a major news story. Kavanaugh responded that he did not recognize the man and had assumed he was one of the many protesters at the hearing. Ordinarily, Kerri Kupec accompanied him to identify the people who approached him and to keep him from getting mobbed, but she had not received a pass that day. In the commotion of the hearing room, most members of the White House team couldn’t hear what the man was saying. Everyone’s nerves were on edge, and the marshals hustled Kavanaugh toward the exit as the man approached. “If I had known who he was, I would have shaken his hand, talked to him, and expressed my sympathy. And I would have listened to him,” Kavanaugh wrote.1 It was true. Claire Murray was the aide who informed Kavanaugh who the man was, and he was mortified.

  Little new information emerged from the myriad questions and answers. One exception was confirmation that he had spoken to Attorney General Jeff Sessions about the position of solicitor general. He had decided to remain a judge, and the position went to Noel Francisco, his former colleague in the Bush White House.

  Despite the lack of good faith behind most of the questions, Kavanaugh’s answers were still important, and not merely because his opponents would exploit any error. Senator Hirono, for instance, asked him about Rice v Cayetano, in which the Supreme Court struck down as racially discriminatory a law restricting a certain state office to “Native Hawaiians.”2 Hirono, who had already announced her “no” vote, was trying to persuade Senator Lisa Murkowski to vote against Kavanaugh on the grounds that his views on race-based voting would be detrimental to Native Alaskans. In his answer, Kavanaugh carefully clarified that the “Supreme Court’s 7-2 opinion 18 years ago in Rice v Cayetano had no effect on the rights and privileges of American Indians and Alaska natives that the Court had long recognized” and that the case had “nothing to do with the sovereign rights of Alaska Natives and American Indians to run their own government affairs, including administering Tribal elections.”

  Senator Jeff Flake was the only Republican to submit a question with potential pitfalls for the nominee. His staff told Kavanaugh’s team before the hearings that he was bothered by the politicization of the Department of Justice. Kavanaugh’s team had encouraged the senator to be more specific—the department is part of the executive branc
h, after all, and so accountable to the president—and ask about particular decisions, but he did not want to narrow the scope of his question. Unsatisfied with Kavanaugh’s response at the hearing, Flake submitted a similar question in writing: “Should a president be able to use his authority to pressure executive or independent agencies to carry out his directives for purely political purposes?”

  Kavanaugh’s response carefully threaded the needle. He began by noting that no one, including the president, is above the law. While he acknowledged that political leadership of agencies is expected and appropriate, good political leaders should follow the “principle that everything the Government does must be based on sound legal principles and a legitimate factual basis.” It is the courts that must remain independent of political considerations, he wrote, citing his opinion in Hamdan v United States, which contradicted a strongly held view of his previous boss, George W. Bush.3

  A first draft of Kavanaugh’s answers to all the questions was completed in twelve hours and sent to Brett Talley, who was working with Michel and Murray at the White House. A former deputy assistant attorney general (and prolific author of Lovecraftian horror novels), Talley had accumulated invaluable institutional knowledge working on Supreme Court appointments in the Bush administration and, more recently, on Gorsuch’s nomination. Getting Kavanaugh confirmed was personal for him. He had been nominated for a district court judgeship in September 2017, but his confirmation went down in a storm of partisan attacks. Throughout the confirmation process, Talley had managed to dodge the press, lest some reporter recognize him and stir up controversy. The indispensable bridge between the legal minds and the communications people, he was also valued for what one colleague called his “buoyant spirit.”