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

by Mollie Hemingway

  While the Kavanaugh family took part in the ceremony and a small reception inside the Supreme Court building, the chaos continued outside. Marshals had grown accustomed to the protesters trailing Kavanaugh throughout the confirmation process, but the Supreme Court police were caught off guard when hundreds of raucous protesters rushed the steps of the building, apparently trying to open the thirteen-ton bronze doors. Instead of trying to disperse them, the police monitored the mix of protesters and onlookers milling about, including one topless woman with a Hitler mustache who stood in front of the doors and another woman who climbed up into the lap of the giant statue of a woman representing the Contemplation of Justice.

  When Justices Ginsburg and Kagan left the building, their car was surrounded by protesters throwing tomatoes and water bottles. So when the Kavanaughs and their guests were ready to leave, the Supreme Court police assembled a caravan, which exited through the south gate, sirens blaring, before the protesters realized what was happening. The Kavanaugh girls, thrilled by the sirens and police escort, assumed this was how they would travel from now on. Their parents hoped they were wrong.

  On Monday, all the justices assembled in the East Room of the White House for Kavanaugh’s ceremonial swearing-in, some of them having sought assurance from the White House that the event would not be too political. Justice Kennedy arrived with his robe, unsure if he should wear it for the swearing-in. He had worn it when he administered the oath of office to Neil Gorsuch in a Rose Garden ceremony the year before. For Kavanaugh, he decided against it.

  After introducing the justices and thanking Don McGahn, President Trump introduced Justice Kennedy and praised his lifetime of service. After the past few brutal weeks, everyone in the room was ebullient and ready to cheer. Senator McConnell received applause as well.

  Trump said he would like to do something important: “On behalf of our nation, I want to apologize to Brett and the entire Kavanaugh family for the terrible pain and suffering you have been forced to endure. Those who step forward to serve our country deserve a fair and dignified evaluation, not a campaign of political and personal destruction based on lies and deception. What happened to the Kavanaugh family violates every notion of fairness, decency, and due process.”

  “In our country, a man or woman must always be presumed innocent unless and until proven guilty,” the president said. Turning to Kavanaugh’s young children, he continued, “Margaret and Liza, your father is a great man. He is a man of decency, character, kindness, and courage who has devoted his life to serving his fellow citizens. And now, from the bench of our nation’s highest court, your father will defend the eternal rights and freedoms of all Americans. You know that.” As a former justice prepared to administer the oath to his successor and former clerk, Trump commented that it was “a beautiful moment which reminds us that freedom is a tradition passed down from generation to generation.”21

  Justice Thomas, the only man in the room who fully understood what Kavanaugh had endured, clapped loudly.

  Kavanaugh was glad his children could hear the kind remarks. When it was his turn to speak, he carefully avoided any hint of partisanship, reassuring the American people that he would be the same judge as always and would carry no bitterness with him. Some had questioned whether the man who testified in the second round of hearings could be impartial. He had been a judge for twelve years and was known for his equanimity after the partisan attacks occasioned by his appointment to the court of appeals. He had given a spirited defense of himself and his reputation at his Senate hearing, but that was an entirely different forum from the courtroom. He wanted to make sure that his new colleagues knew that.

  Kavanaugh moved into chambers overlooking the Library of Congress, toward the back of the Supreme Court building. Alito had occupied those chambers for the previous nine years, and Scalia for eighteen years before that. For the thirty years before that, they belonged to Justice William Brennan. His office includes a working fireplace prepared each morning to be lit. During the winter months, Kavanaugh was grateful for its comfort and warmth.

  The other justices made him feel welcome, each paying a visit to show his or her support. Justice Sotomayor told him that what matters is what he does on the Court and reminded him that “we’re family here.” While Justice Thomas had endured a uniquely brutal confirmation process, all the justices remembered it’s taking a heavier toll on them than they had expected.

  As overwhelming an ordeal as Kavanaugh had just endured, he couldn’t afford even a day’s rest; oral arguments would take place on Tuesday, October 9. He had browsed a brief before his confirmation vote, but wasn’t able to focus until Sunday, the day after his confirmation. Other justices offered help by sharing bench memos.

  On Kavanaugh’s first day on the bench, October 9, Justice Kagan made a point of talking to him during the bar admission ceremony before oral arguments, demonstrating to the public that Kavanaugh’s “team of nine” analogy was not far wrong. At the end of arguments she publicly shook his hand when they got up. The gracious act was reassuring, as protesters were still gathered outside. The culture of the Court is more like a family. Even the spouses of retired and deceased justices, such as Mary Kennedy and Maureen Scalia, return for events.

  While Kavanaugh began to participate in deliberations immediately, his formal investiture did not take place until November 8. In attendance were family and friends, his former colleagues on the court of appeals, and Senators Mitch McConnell and Lindsey Graham. Don McGahn almost didn’t make it inside. Having left his job as White House counsel, he no longer had a security detail. He had parked a few blocks away, and when he arrived at the Supreme Court, the police were shutting off access. By the time he got through security and into the Court, he was told that he was a moment too late, so he sent Kavanaugh a text message that they had turned him away and left the building. Outside, someone flagged him down and brought him back in. The White House staff secretary, Derek Lyons, had taken his seat, so he sat in the next row back, beside Justice Kennedy.

  Kavanaugh was seated in Chief Justice John Marshall’s chair, which has been used for the investiture of every member of the Court since Lewis F. Powell Jr. in 1972. He lowered himself into it carefully, so as not to damage the historical artifact. President and Mrs. Trump were the last ones seated, entering the room just after McGahn.

  The ceremony lasted only a few minutes. Kavanaugh’s commission was presented by Matthew Whitaker, who had been named the acting attorney general only the day before. A large man, Whitaker had scrambled to find a formal morning coat that he could fit into.

  The interval of a few weeks before the investiture allowed Ashley to order a dress for the occasion. The White House ceremony in October took place immediately after confirmation, so she had to select from something in her closet. She was conscious that she couldn’t have too much fun with fashion or accessories without photos looking dated in the future. The confirmation battle had been brutal, but she and her husband believed it had happened for a reason. Refined by fire, they had emerged stronger.

  Traditionally, a newly invested justice, accompanied by the chief justice, descended the long set of steps from the Court to the plaza, where his family awaited him. Assuming that the traditional walk would be an invitation to protesters, Kavanaugh decided to pose for pictures with the chief justice in the conference room instead. Other members of the court regretted the passing of the tradition, but Kavanaugh preferred a celebratory message of unity.

  Justice Ginsburg did not attend the investiture ceremony. She had broken three ribs in a fall two days earlier.

  CHAPTER TWELVE

  Legitimacy

  The election night of November 6, 2018, was filled with uncertainty. Republicans had enjoyed massive gains in the House of Representatives during the Obama years—the 2010 midterm elections saw them pick up sixty-three seats, the biggest electoral gain for a major party since 1948. But now that a Republican was president, history and the polls suggested that this w
ould be a good night for the Democrats. And it was. They gained thirty-nine seats, reclaiming a majority in the House for the first time in eight years.

  The Senate was a different story. Despite political headwinds, Republicans benefited from a favorable electoral map—far fewer GOP incumbents were up for reelection than Democrats. Ten of the twenty-five Democratic senators running for reelection were in states that Trump had carried, and six of those seats were considered vulnerable: North Dakota, Florida, West Virginia, Indiana, Missouri, and Montana. Republicans were expected to expand their slim majority in the upper chamber, but the forecast was clouded by the “X-factor”: the Kavanaugh confirmation.

  When Christine Blasey Ford’s allegation turned an already contentious confirmation process into a political conflagration, Democrats began to hope that the controversy might change their fortunes in the Senate. In a New York Times piece titled “Kavanaugh Was Supposed to Be a Midterm Boon for G.O.P. Not Anymore,” Jonathan Martin reported that “in Missouri and other politically competitive battleground states, leaders in both parties are increasingly doubtful that [Republican senatorial candidate Josh] Hawley and other Republicans can wield the Kavanaugh nomination as a cudgel without risking unpredictable repercussions in the midterm elections.”1

  As allegations piled up and the confirmation seemed in doubt, Democrats were openly whispering that taking down Kavanaugh was part of a comprehensive electoral strategy. If Kavanaugh’s confirmation failed, “Dems believe they can juice turnout—already hitting record levels—by playing off the huge public attention to the court, and Roe v Wade in particular,” reported Axios’s Mike Allen. Further, “They envision President Obama and Michelle Obama locking arms with the Clintons, the Bidens, and Democratic congressional leaders to crank up a presidential-election-sized campaign. They feel confident every rich liberal in America would help fund this effort.”2

  By the final week of Kavanaugh’s confirmation process, however, it was becoming clear that the circus atmosphere and the torrent of absurd allegations were instead firing up Republicans. An NPR–PBS NewsHour–Marist poll released on October 3 found that the so-called “enthusiasm gap” had evaporated. “In July, there was a 10-point gap between the number of Democrats and Republicans saying the November elections were ‘very important,’ ” noted the pollsters. Now the enthusiasm of Republicans and Democrats was even.3

  And the timing and a plethora of anecdotes from Republican officials strongly suggest that Kavanaugh was the cause of the GOP boost. “It’s got to be Kavanaugh,” the Republican pollster Robert Blizzard told the McClatchy news service. Another Republican pollster, Whit Ayres, also confirmed to McClatchy that the Kavanaugh fight was motivating voters: “It’s the difference between victory and defeat in a close race. They’re pretty upset about how Kavanaugh has been treated.” Other Republican pollsters and strategists confirmed there had been a polling bump in individual Senate races, as well as gains in support from Republican women, in response to Kavanaugh.4 The connection seemed obvious enough to Senate Majority Leader Mitch McConnell. “The ironies of ironies, this has actually produced an incredible surge of interest among these Republican voters going into the fall election,” he told USA Today the day Kavanaugh was confirmed to the Supreme Court. “We’ve all been perplexed about how to get our people as interested as we know the other side is, well this has done it.”5

  After Kavanaugh was confirmed, it was hard to spin what had happened as anything other than a defeat for Democrats, who had given their all—including a portion of their decency—to stop the nomination. Nonetheless, as soon as congressional Democrats saw that defeat was imminent, they signaled their plans to keep the issue alive through the election. The day before Kavanaugh was confirmed, five members of the House Judiciary Committee, including the ranking member, Jerry Nadler of New York, promised further investigations of the sexual assault allegations and of charges that Kavanaugh had perjured himself in explaining his past drinking and the embarrassing contents of his yearbook. Still, Kavanaugh and the Supreme Court did not dominate Democratic messaging heading into November, as Democrats stuck to tried-and-true themes such as health care and opposition to Trump.

  The president, on the other hand, had come to power by deftly capitalizing on grassroots Republican concerns about respect for law, and he trumpeted his success in putting two new justices on the high court. “This will be an election of Kavanaugh, the caravan [of illegal migrants], law and order, and common sense,” he said at a campaign rally in Montana on October 18.6 At a Trump rally with the GOP senate candidate Josh Hawley on November 3, the crowd spontaneously chanted “Kavanaugh! Kavanaugh!” after Hawley lauded the president for putting “pro-Constitution judges on the bench.”7

  Of course, the cliché in politics is that election day is the only poll that matters, and for good reason. The Democrats’ thirty-nine-seat gain in the House reflected an 8.6 percent margin in the popular vote, which might have affected the Senate races more than it did. Going into the election, Republican hopes for expanding on their Senate majority were muted. Of the six most vulnerable Democratic incumbents in the Senate, the polling website FiveThirtyEight had Republicans favored to win only in North Dakota. Republicans beat expectations, winning four of those races. The two they lost were West Virginia and Montana. The victor in West Virginia, Joe Manchin, was the only Democratic senator to vote for Kavanaugh, and that vote was widely recognized as important to his victory. Indeed, his opponent, Patrick Morrisey, used Manchin’s late vote to confirm Kavanaugh—after it was already clear he would be confirmed—as a talking point.8

  The Democrat in Montana, Jon Tester, won his race after voting against Kavanaugh, but of the Democrats whose seats were vulnerable, Tester had the strongest polling numbers after Manchin. The four races Republicans won were all upsets, and their candidate in Florida, Rick Scott, won by a razor-thin margin of ten thousand votes out of more than eight million cast.

  The Democrats had hoped to take a seat from the Republicans in the deep-red state of Tennessee, which Trump had carried by twenty-six points. The popular former governor Phil Bredesen was running for the open Senate seat against the Republican congresswoman Marsha Blackburn. Bredesen led early in the race, and as late as mid-September he was up by five points in a CNN poll. The race wasn’t polled again until the weekend heading into the final week of testimony in the Kavanaugh confirmation, when Fox News showed Blackburn up by five. Bredesen never recovered his lead.9

  This definitive shift in the Tennessee race did not appear to be coincidental. The no-holds-barred attacks on Kavanaugh were hurting Bredesen’s campaign. After months of dodging questions about the judge, Bredesen announced his support of Kavanaugh’s confirmation on October 5, just one day before the confirmation vote.10 The last-minute and seemingly calculated show of support didn’t help. Blackburn won the race by more than ten points.

  The press could no longer deny that the brutal campaign against Kavanaugh had backfired against Democrats. “Democratic Senators Lost in Battleground States after Voting against Kavanaugh” was the headline in USA Today the morning after the election. Exit polling by ABC News in the Senate battlegrounds of North Dakota, Indiana, Florida, and Missouri showed that voters for whom the Kavanaugh confirmation was an important factor in their vote consistently broke for Republicans by large margins.11

  Democrats had poured effort and money into an issue that motivated Republicans more than their own base. By angering the GOP base, they may have sealed their own defeat in a number of close races—not only for the Senate, but extremely tight governor’s races in Florida and Georgia as well.

  Congressional Democrats, supposedly convinced of Kavanaugh’s guilt, have hesitated to expend more political capital pursuing him since taking control of the House. To date, there has been no further investigation of the allegations against him or the charge that he perjured himself. Jerry Nadler, now chairman of the House Judiciary Committee, has acknowledged that all the talk at the beginning of O
ctober 2018 about impeachment was merely a tactic to shift the balance of the Court.12

  Part of the reason Democrats changed the subject is that the confirmation battle helped Republicans as much as or more than it did Democrats. While polls showed the vocal Kavanaugh opponents Hirono, Leahy, and Klobuchar among the ten most popular senators in their home states, Republicans who supported him received a tremendous bump as well. January 2019 polls showed increased Republican support for Senators Collins, Graham, and McConnell. The latter, usually the least popular senator, saw his net approval jump by ten points from the previous quarter. Lindsey Graham’s approval rose fifteen points, the second-highest increase in the country, after his spirited defense of Kavanaugh. On the other hand, Senator Murkowski’s net approval fell by ten points, eighteen points among Republicans, and Senator Flake ended his time in office as the least popular senator.13

  Overcoming vicious political attacks, Brett Kavanaugh had been duly confirmed by the Senate and taken his seat on the U.S. Supreme Court, but the effort from some quarters to persecute him persisted. After undergraduates at George Mason University discovered that he was to teach a course at Mason’s Antonin Scalia Law School, they began protesting. Demand Justice began running Facebook ads promoting a petition that he be fired.14 New York witches placed multiple hexes on “Brett Kavanaugh and upon all rapists and the patriarchy which emboldens, rewards and protects them.”15 The new justice had to contend with eighty-three ethics complaints stemming from his confirmation hearing, including allegations of perjury, as well as supposedly unbecoming conduct when he defended himself against gang rape accusations.16 A federal court dismissed all the complaints in December 2018.17