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

by Mollie Hemingway

  The left-wing magazine The Nation took it from there, calling on the Democrat-controlled House to impeach Kavanaugh. Even if impeachment were constitutionally possible for pre-confirmation actions, Republican control of the Senate would make it a pointless but potentially disastrous gesture.18 But the author of the article, Elie Mystal, was undeterred: “I know some Democrats will say that bringing charges against Brett Kavanaugh—impeaching him—is pointless. Some Democrats insist on living in a country where nothing is ‘worth it’ unless Republicans are likely to agree. I refuse to live in that world. If I waited for Republican approval before I tried something, I’d be shining shoes at Grand Central, as would befit my station.”19

  Mystal may have landed on the central question to come out of the Kavanaugh nomination. Were the deplorable attacks, which inflicted so much damage on numerous lives and on the political process, worth it?

  Many journalists and activists were so enthralled with a portrait of Brett Kavanaugh that had been cultivated by a coordinated and politicized gang of lawyers, public relations specialists, and distant acquaintances of the nominee that they were blind to the very different portrait painted by those who knew him longest and best.

  Kavanaugh was a good friend, a kind and thoughtful man, a hard worker with high standards who nonetheless was committed to living on the “sunrise side of the mountain.” He liked beer and had fun with the rest of the crowd but had a steady, even-keeled personality. He was never the one to make lewd comments about women or brag about sexual conquests. He was always one of the smartest kids in his class but also one of the hardest workers, always ready to help a friend with his homework. It is not his standout personality but his steadiness and loyalty that people remember. It was surely much more interesting and politically useful to paint him as a sloppy drunk groping women at every turn, who somehow ruthlessly climbed to the pinnacle of his profession, willing to steamroll any woman, senator, or ethical norm that stood in his way.

  High school, college, and law school friends exchanged stories about the reporters who called looking for dirt. When they replied that the drunken assailant was not the man they had known, in some cases for decades, their accounts were ignored.

  “Many recent media articles feature quotes from people who appear to know Kavanaugh barely, if at all,” wrote Mark Perry, a co-clerk and longtime friend, on the day of the confirmation vote. “I’ve known him for almost 30 years, and I’ve spoken on the record to loads of reporters about him, yet I have never been quoted in any story. Is this because I have nothing salacious to say? Whatever the reason, the result is a one-sided and inaccurate depiction.”20

  It brings to mind the famous line from The Man Who Shot Liberty Valance: “This is the West, sir. When the legend becomes fact, print the legend.”21 Time and again, when a reporter was faced with firsthand evidence that Judge Kavanaugh’s reputation as a man of outstanding character was true, he declined to print the story.

  Being ignored was perhaps the best that Kavanaugh supporters could hope for. Professor Akhil Amar of Yale Law School provoked the fury of the left by arguing that Kavanaugh was the best possible nominee from the Trump administration.22 The scholar’s arguments were derided in the mainstream press as “crap” and “horses--t” and dismissed as self-serving elitist back-scratching.23 Amar backtracked somewhat on his support after the allegations broke, calling for some investigation of Ford’s claims while noting that his opinion about Kavanaugh’s legal abilities remained unchanged.24

  After the confirmation, Senator Susan Collins continued to receive hate mail and threats, including to her family. On October 15, as she was traveling home from Washington, her husband texted her a photo of himself in full hazmat gear. An envelope addressed to him had contained a letter that purported to be infused with ricin. By the time Collins finished her stressful two-hour drive from Portland, her street was blocked off with yellow crime scene tape and her home taken over by the local police and fire department, the FBI, and the army’s weapons of mass destruction unit. The house was quarantined, including their black lab puppy. Their neighbors rushed to their aid, and a local Chinese restaurant and a Wendy’s tried to figure out how to break the blockade and get their favorite meals to them. Collins saw a silver lining: it had provided an excellent drill for the first responders and nobody got hurt. A few days later another envelope was sent to her home labeled “anthrax.”25 Postal inspectors intercepted it and, after determining it contained cornstarch, were able to trace it to the sender, who was charged with sending threatening communications.

  Women who attested to Kavanaugh’s character in high school lost friends. Many had to drop off of social media during the confirmation process. All lost a degree of privacy and peace when their names were made public, and reporters hounded them for information about the judge.

  Joel Kaplan, a vice president of global public policy for Facebook in Washington, D.C., faced a revolt in his workplace over his desire to support his longtime friend. Kaplan and Kavanaugh and their future wives had worked together in the Bush administration, and the families had remained close—so much so that they would even spend Christmas together. The Kaplans decided to attend the September 27 hearing as a gesture of solidarity. Laura Cox Kaplan held Ashley’s hand. Joel sat behind the judge. He took the day off work and didn’t think to run it by his supervisors because he was there in a personal capacity, standing by a friend during one of his most difficult moments.

  When employees at Facebook identified Kaplan in the broadcasts of the hearings, they were outraged. Company message boards were swamped by hundreds of comments, many interpreting his presence at the hearings, implausibly enough, as an implicit endorsement of Kavanaugh by the entire company.

  The political atmosphere at Facebook, of course, is monolithically liberal. Just weeks before Kavanaugh’s first hearing, a senior engineer had started the group FB’ers for Political Diversity in protest of the left-wing intolerance that makes Facebook employees “afraid to say anything when they disagree with what’s around them politically.”26 The company had come under scrutiny for such intolerance, and Kaplan was hired as a gesture of political open-mindedness.

  Whatever the corporate leadership’s intentions were, Facebook employees did not get the message. They saw Kaplan’s attendance at the hearing as a thumb in the eye of the liberal culture at Facebook. A program manager angrily concluded, “His seat choice was intentional, knowing full well that journalists would identify every public figure appearing behind Kavanaugh. He knew that this would cause outrage internally, but he knew that he couldn’t get fired for it. This was a protest against our culture, and a slap in the face to his fellow employees.”27 Those who sat behind Ford were not subject to such scrutiny, much less attacks.

  Other employees interpreted Kaplan’s support for his friend, and even Mark Zuckerberg’s defense of that friendship, as a source of “stress and trauma.”28 A statement by Facebook’s high-profile chief operating officer, Sheryl Sandberg, echoed what seemed to be the universal sentiment at the company: “As a woman and someone who cares so deeply about how women are treated, the Kavanaugh issue is deeply upsetting to me—as I know it is to many women and men in our company and around the world.” This implied that the accusations themselves settled the question; the judge’s personal innocence was irrelevant.29 Kaplan’s own apology stopped short of repudiating his friendship but called the episode “deeply painful, both internally and externally.” It was more than many thought he should have to say, but it seemed necessary for a company with the bulk of its workforce in revolt.

  Outside the Silicon Valley bubble, many were shocked by the reaction at Facebook, as if Kaplan’s attendance at the hearing was tantamount to the corporation’s endorsement of Kavanaugh. In any case, believing that he was innocent of the accusations was hardly the equivalent of dismissing all complaints about sexual assault. Some Facebook employees and even executives were dismayed by the inability of many of their colleagues—mostly of the “mi
llennial” generation—to deal with a diversity of political opinion. But having learned from Kaplan’s experience with the liberal mobs, they kept their expressions of support private.

  Laura Cox Kaplan also drew fire for supporting her friend in the form of nasty messages from strangers, but the response within her professional network was markedly different from her husband’s Silicon Valley experience. She had been more vocal in Kavanaugh’s defense than her husband, having participated in the September press conference of longtime women friends supporting Kavanaugh. Before that press conference, she had notified the many organizations on whose boards she served, aware that her stance could provoke controversy and offering to step down if that happened. She needn’t have bothered—the press conference was ignored by the media. But her colleagues, perhaps because they were from a generation more accustomed to embracing friendships across the aisle, were universally supportive.

  Kaplan co-chairs Running Start, a nonprofit organization that trains women from both parties to run for office. Her co-chairman, Tasha Cole, a Democrat and the vice president of the Congressional Black Caucus Foundation, went out of her way to support Kaplan’s stand. “Watching her support a dear friend in this political climate with conviction, class, grace and perseverance turns a new page in our friendship,” Cole wrote in a Facebook post.30 The two have used the experience as a teaching moment for the young women they mentor through Running Start, encouraging them to use their voices, even when that may be unpopular.

  That model of friendship despite political differences was embraced by Lisa Blatt, the Washington “super lawyer” who introduced Kavanaugh at his first hearing. The self-described liberal feminist holds the title for the most Supreme Court arguments by any woman—thirty-seven—and has won an astonishing thirty-four of those.31 She said Kavanaugh was “unquestionably well-qualified, brilliant, has integrity and is within the mainstream of legal thought.”32

  In response, Brian Fallon, Hillary Clinton’s former press spokesman, called Blatt’s endorsement of Kavanaugh a “transactional ploy” and criticized her for “selling out progressive causes in order to advance her corporate clients’ interests.”33 Slate asked, “Why Is Lisa Blatt Endorsing Brett Kavanaugh?” and then answered its own question: “Because rich clients trump justice.”34

  Blatt took Slate’s criticism in stride, considering it understandable but inaccurate. Lawyers on both sides of the aisle face those charges when they endorse someone they are likely to appear before as litigants. What she found patronizing and insulting was the assertion of people like Brian Fallon—even before the Ford allegations—that because she believed Brett Kavanaugh was a good person, she wasn’t a real liberal or was a patsy for the Republicans. Even worse was the hate mail she received, including people expressing hope that her daughter would be assaulted.

  Most of Blatt’s friends who shared her politics distanced themselves from her. She offered them a choice: be her friend and agree to disagree about Kavanaugh or live in their political bubble without her. Most chose politics. Only two friends decided they could stand by her. They helped her pick out a dress to wear to the hearings and were able to appreciate how exciting it was for her to be invited to testify before the Senate. Many of Blatt’s colleagues were no more supportive than her friends, suggesting that her stand for Kavanaugh was hurting hiring at the firm. Others were patronizing or condescending, offering to help her back away from her support of Kavanaugh toward the end of the process. They didn’t realize she still wanted him confirmed. She switched jobs and has now found a group of partners who can get along even while embracing a wide range of political viewpoints. It’s a model that is all too rare in today’s world.

  Blatt is sanguine about her experience. “Far from feeling like a victim, I am proud to have stood by him and would do the same thing all over again,” she says. If she has lost friends, she views it as their loss. In fact, she describes it as “the best thing that ever happened to me.” And, of course, she has the luxury of having great options and another firm that welcomed her. Her bluntness is refreshing in a world of snowflakes, forced apologies, and social ostracism. She called their bluff, and by walking away from their demands for conformity, she robbed them of their power. Imagine a world where fewer people were scared to stand up for what they believed. It could start a virtuous circle, in which every person who bucked the popular views would drive down the cost of standing up.

  Many things went horribly wrong on Brett Kavanaugh’s road to the Supreme Court. But more importantly, many things went right. It was no accident that, when confronted with the most aggressive, coordinated, and well-funded attack on a judicial nominee in this nation’s history, the effort to confirm Kavanaugh was successful. There were at least five reasons for this success.

  First, the nation had a president who supported the conservative judicial movement. His campaign had assembled a coalition that included that movement, and he embraced the cause of nominating principled originalist judges.

  Winning an election, however, is not enough. The appointment of a Supreme Court justice is the work of key members of the president’s senior staff, who must make the nomination and confirmation a priority. Once in office, President Trump put in place a highly qualified team, headed by Don McGahn, who enabled him to fulfill his campaign promise of putting reliable originalists on the Court. And Trump stood by the project when it became politically imperiled.

  Second, Republicans controlled the Senate. In today’s polarized environment, the likelihood of a Democrat’s voting for any Republican nominee, however qualified, is miniscule (although there are still plenty of Republicans who will compliantly vote for a Democratic nominee). Controlling the Senate is therefore essential for appointing a conservative to the Court.

  Third, an array of organizations made the confirmation of originalist judges a priority. That infrastructure made the Gorsuch and Kavanaugh victories possible. And that infrastructure was the product of thirty-five years of work by the conservative legal movement to establish itself as a potent and well-organized force for changing the judiciary and the legal culture. It nurtured the lawyers who would staff the White House and the Department of Justice, who would be elected to the Senate and become key aides, and who would become judges themselves. And it carried out the slow but crucial task of educating the public on the importance of constitutional principles and the judiciary’s role in upholding them. This relentless work eventually produced the public demand for a president who would make the judiciary a priority.

  Fourth, new media outlets emerged to challenge the liberalism that had reigned in the press for decades. These publications, web magazines, and podcasts refused to let liberal media control the narrative. They confidently reported the facts and showed courage in the face of overwhelming pressure.

  Finally, none of these achievements would have been possible without conservative Americans themselves. They rallied behind candidates, provided their needed campaign funds, and organized and funded advocacy groups. Americans’ instinctual understanding of the value of the rule of law played an important role.

  Despite the personal fallout for Kavanaugh and those involved in the confirmation battle, it was obvious from the beginning that the frenzy surrounding his confirmation was not about his qualification for the job. Instead it was about control of the Supreme Court, an institution that plays an increasingly large—and increasingly questionable—role in America’s social, economic, and political life.

  The growth of the Court’s influence has coincided with that of the federal government itself. As the ambition of federal legislation increased from the New Deal onward, the possibilities for running afoul of the law increased dramatically. At the same time, the growth of the administrative state introduced the proliferating regulations of a multitude of federal agencies, administrations, and commissions, which have the force of law. Members of Congress found it simpler to “do something” about major problems by writing vague legislation and leaving the detail
s to be worked out by “experts” in administrative agencies. They could pass laws that aspired to solving great problems without having to reach the compromises required to gain the necessary votes or being accountable for making the hard choices that governing demands.

  All too often, the unelected experts charged with making those hard calls were not the non-political technocrats they were billed as but were pursuing a partisan end. Even an administrative state staffed by a mythical breed of pure-minded, disinterested bureaucrats would be subject to an almost irresistible tendency to metastasize. Regulation by agencies is relatively simple to promulgate—it merely takes the time and patience necessary to announce a rule, take comments, and show that the comments were in some way taken into consideration. Navigating bureaucratic procedure and red tape is easy compared with cobbling together a majority (or supermajority) of both houses of Congress and winning the president’s support. So with the growth of the administrative state, the volume and scope of federal law also grew. Issues that once were left to the states or the people were now literally made into federal cases.

  As Congress’s ability to legislate has declined, the temptation to turn to simpler ways of governing has grown. Unable to work with Congress, President Obama famously turned to his “pen and phone,” that is, to executive orders and administrative agency action. Another alternative to dealing with a gridlocked Congress has been the courts, which themselves have abdicated some of their own authority.

  In the 1980s, the Supreme Court began attempting to extract itself from an ever more complicated regulatory state by deferring to agencies when they interpreted statutes and, eventually, their own regulations. It may have saved the courts from making hard legal calls, but it put those decisions in the hands of the regulators—a heavy thumb on the scale for the bureaucrats whenever they were in a lawsuit. In the resulting system, in which all ties were decided in favor of government regulators, it was difficult for courts to be impartial interpreters of the law.