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

by Mollie Hemingway

  Vicious confirmation battles will unfortunately dissuade the best Americans from being considered for the nation’s judiciary. Some good people will undoubtedly still serve out of a sense of civic duty. One of Kavanaugh’s colleagues says the process is so tough that it isn’t worth it as a career move, but only out of a sense of duty or vocation. “Personally I don’t wish that on anybody. But when you’re called—think of the men whom we send into harm’s way. Think of the Marines storming the beaches in World War II. If you think you’re being asked to give more than them, don’t do it.”

  Unfortunately, the only reason many other good people will continue to sign up for the job is the naïve belief that it won’t happen to them precisely because they are good people. But it can happen, it does happen, and it just happened. The big unknown is whether America will let it happen again.

  Note to readers

  This book is based on interviews of more than one hundred people, including the president of the United States, several Supreme Court justices, high-ranking White House and Department of Justice officials, and dozens of senators. The authors also spoke with leaders of advocacy groups and legal experts, with family, friends, and former law clerks of Justice Kavanaugh, and with many others involved in the effort to confirm a successor to Justice Anthony Kennedy.

  These people graciously gave of their time and knowledge, many sitting for multiple interviews, some for as many as ten hours total. The vast majority of the interviews were conducted “on background,” which means that the information could be used, but the source asked not to be identified. Most anecdotes have multiple sources. Characterizations of how someone felt come from either the source or someone the source spoke to. In addition to interviews, sources generously shared historical documents, contemporaneous notes, and memos.

  This account draws heavily from contemporaneous news reports, the scholarship of Supreme Court historians, and the exhaustive archives of C-SPAN.

  The book also relies on the personal knowledge of the authors, acquired through their work during the Kavanaugh confirmation process and with the conservative legal movement. Carrie Severino, the leader of the Judicial Crisis Network, was deeply involved with the promotion of Judge Kavanaugh’s confirmation from the time of his nomination. She is a Harvard Law School graduate who clerked at the Supreme Court. Mollie Hemingway is a senior editor of The Federalist, a web magazine that covers politics, policy, and culture, and a contributor to Fox News. Through their work, they became closely acquainted with key players and their views as well as with important themes and events that have not been previously reported.

  The book arose out of a desire by participants in these extraordinary events to tell their stories to writers who had not joined in the media’s public opposition to Justice Kavanaugh’s appointment. While both authors admit to a right-of-center perspective, they have endeavored to produce an objective account that reflects a respect for the rule of law and the presumption of innocence.

  Acknowledgments

  This book would not have been possible without the help and support of many people. We apologize in advance for any we have unintentionally omitted.

  Tom Spence has been a major blessing on this project. He has performed the literary equivalent of making a house into a home. He wove our 110,000-word manuscript into a cohesive story. And he did so under the tightest of deadlines and with constant “breaking news” being added to the manuscript even in the final hours of editing.

  We are grateful that Marji Ross and Regnery Publishing were willing to take on this whirlwind of a project. Nobody else could have taken us from a signed contract in January to a finished product in July, and we are indebted to them for their trust in us and this project.

  Our interns were another major stroke of providence. Hillsdale College’s Kirby Center provided us five thorough, enterprising, and reliable assistants at various points in the writing. Kristyna Skurk and Solomon Chen put in long hours checking and correcting our endnotes and researching the more obscure corners of Supreme Court history. The budding journalist Alexis Nester was intrepid in tracking down and interviewing sources. And Hanna Thullen and Jackson Frerichs assisted in straightening out our timeline of events.

  Thank you to our many sources for their generosity with their time and stories, for their patience in explaining to us everything from the intricacies of Senate rules to the conventions of suburban Maryland high school culture. We are grateful to President Trump for the time he afforded us to discuss judicial selection. Thank you to Senate Majority Leader Mitch McConnell and Judiciary Committee Chairman Chuck Grassley for their generosity with their time. We would also like to thank John Abegg, Randy Barnett, Shari Berger, Robert Bork Jr., Jonathan Bunch, Justin Clark, Marjorie Dannenfelser, Mike Davis, Doreen Denny, Julie DeVol, Mario Diaz, Annie Donaldson, Antonia Ferrier, Sara Field, Taylor Foy, George Hartmann, Laura Kaplan, Kerri Kupec, Leonard Leo, Ted Lehman, John Malcolm, Jenny Beth Martin, Gary Marx, Attorney General Ed Meese, Rachel Mitchell, Patricia Miles, Penny Nance, Vice President Mike Pence, Sarah Pitlyk, Mallory Quigley, Ralph Reed, Annabelle Rutledge, Raj Shah, Janae Stracke, Brett Talley, Garrett Ventry, and Helgi Walker.

  Carrie Severino

  I never planned to write a book. When people close to the Kavanaugh confirmation shared with me their concerns that the books being written on the topic would be biased, I hoped that a respected and principled journalist like Mollie would agree to write the true story. But when Mollie called me, saying she would do it only if I agreed to be a co-author, her partnership gave me the confidence to take on a project that felt totally beyond me. In truth, it still does. Looking back on how many persons we were able to interview and how much information we were able to amass in a mere four months, I’m still not sure how we managed it.

  To write a book is one thing, but to co-author a book as involved as this one was daunting in a different way. Would we hate each other by the time the manuscript was finished? How could we split up the work so that neither of us, with her many other obligations, felt unfairly overburdened? It is amazing that we have emerged from that pressure-cooker not only without mutual animosity but as stronger friends and partners. After spending nearly a decade on the other side of the microphone, I have received an intensive apprenticeship in journalism with Mollie that is without parallel. She has taught me to have a healthy skepticism of persons and motives, how to protect my sources, and how to interview for both accuracy and color to give life to the narrative. The icing on the cake is that Mollie came equipped with a husband as astute and articulate as she.

  I am profoundly grateful for my colleagues at the Judicial Crisis Network. They shared generously of their expertise on decades of confirmations, identified all the best books on the confirmation process and loaned them out indefinitely, helped dig through facts and remember events, and allowed me the flexibility to take unofficial leave to write. I couldn’t ask for a better group of friends to work with or a better cause to work for.

  One of my major inspirations for writing this book has been Justice Clarence Thomas. I spent one year in his chambers, but his commitment to his clerks is lifelong. He has maintained his fidelity to the Constitution and to the oath he took before God despite the scorn of our society’s opinion-makers. But he taught me that such scorn is its own kind of blessing. Knowing that he would never have the applause of the elites freed him from one of the many temptations of a judge. I have seen firsthand the unrelenting ad hominem attacks of the hostile media and legal academy. If, through my work, I can do something to help prevent that from happening to another person, I owe it to the justice to try.

  In his memoirs, Justice Thomas recalls the moment when he realized that his confirmation had been transformed from a political battle to a spiritual one. I felt the same during the Kavanaugh confirmation when, on the feast of St. Michael the Archangel (September 29), I began a nine-day prayer novena to Our Lady of Victory, asking for the truth, whatever it was, to be revealed. After a decisive s
peech at three o’clock on the afternoon of the first Friday in October, Justice Kavanaugh was confirmed on the final day of that novena. There were so many moments of providential grace throughout the writing of this book, I feel my guardian angel deserves co-author credit.

  Justice Thomas, reminiscing about his relationship with Justice Scalia, remarked that they connected almost immediately despite their different backgrounds and upbringings. They could anticipate each other’s moves like great dance partners. I am thankful for my great dance partner and husband, Roger, without whose love and support this book would not have been possible. This project—and the confirmation itself—came along when his own job was incredibly demanding, but he never wavered in his encouragement of my work. He adjusted his schedule to be home in time to shuttle children to and from events and to get them ready for school in the morning and for bed at night. He is my advocate when I sell myself short. And he is definitely my better half when it comes to editing. He has the best words.

  My six children have amazed me with their patience and fortitude through this whole process. When Justice Kennedy retired in 2018, I warned them it would be a busy summer, but that things would slow down after the hearings in September. In fact, they only sped up. Over and over I told them, “One more week!” And then when it ended, with a brief breather, it started up again with a book which has had its own series of supposedly final deadlines!

  I’ve seen them all grow in maturity throughout this process. The eldest three—aged thirteen, ten, and eight—have stepped up to take care of their younger siblings and to make dinner and to clean up, even hosting a cooking competition for us in the midst of the craziness with two delicious three-course meals to show for it. My six-year-old is learning to step up with loving acts of service, and the four- and one-year-old are a constant source of amusement and joy. It’s like having a pair of comic sidekicks around 24-7. I know I have failed at times to strike the elusive balance between work and family, but I hope they, along with me, have learned how to let go of the small things, while focusing on making time for each other when it seems that there is no time to be had.

  I never could have managed that balance without the unflappable, loving, and superlatively efficient assistance of Andra Sanchez, our nanny. She has kept the ship of our household running for the past three years with patience, love, and humor.

  I also must thank my parents, Mark and Martha Campbell, and my in-laws, Leonardo and Leticia Severino. All have given generously of their time to support our family, even traveling across the country to help out. I am who I am because of my parents’ love and encouragement, their support of me in all my endeavors, and the sharing of their passions, from baking and music to reading and theology. Becoming a parent myself has made me appreciate even more deeply their love and wisdom.

  In the final push before the confirmation, I tried to explain to my children that they were the reason I was doing this. I want them to grow up in a country devoted to the rule of law and in which ideas are debated vigorously, but civilly. They will be the ones living in the America governed by this Supreme Court, and it will be their justices’—or their own—confirmations that we hope will be run in a more humane way in the future.

  Mollie Hemingway

  My contribution to this book would not have been possible without the support of my colleagues, family, and friends. Thank you.

  This book’s achievements are the result of the work of Carrie Severino, a shockingly good journalist, in addition to being a spectacular attorney. Her precision for details and word choice, brilliant legal mind, and tenacious pursuit of information were a thrill to observe. That she worked around the clock while caring for her six beautiful children, including a baby babbling on her lap, made it only more impressive. She could not have done her remarkable work without her husband Roger’s support. His input from the beginning helped focus and clarify the project as well. I went into the project admiring both of them and came out of it absolutely loving them. For several months, I spoke more each day to Carrie than to everyone else in my life combined.

  My colleagues at The Federalist enthusiastically and graciously supported my work. Thank you to Ben Domenech for his vision and for seeing my potential when so few others did. Sean Davis, who has become a professional partner in multiple ways, helped me think through interviews, research, and storylines. His edits, suggestions, and counsel kept me on course throughout. David Harsanyi, whom it is my joy and privilege to work with, freely gave advice based on his experience of writing many books. I am beyond grateful to, and humbled by, Joy Pullmann for not just working around the clock, but for picking up extra work while I was unavailable. Madeline Osburn has made The Federalist better each day with her infectiously cheerful attitude and work ethic and helped us immeasurably when we dealt with the death of our dear friend and colleague Bre Payton in December 2018. Bre’s joyful spirit, abiding faith, and love for life were a constant source of comfort for me in the dark months following her death.

  Thank you to my Fox News colleagues, who have taught me so much about journalism and broadcasting. Brit Hume saw potential in me and gave me confidence to try out a new medium. Charles Krauthammer encouraged me to find my voice and hold strong to it. Bret Baier and Howard Kurtz brought me on board and allowed me to participate in their excellent programs. Thank you also to Shannon Bream, Tucker Carlson, Laura Ingraham, Ashley Moir, and Mary Pat Dennert. A particular thank you to everyone in the hair and makeup room for transforming me night after night for readiness on the television, a task made more difficult the less sleep I got. They were some of my chief champions and encouragers when I grew weary.

  My colleagues at Hillsdale College, Matthew Spalding and John Miller, provided ready counsel, supportive words, and excellent advice.

  Thank you to my readers at The Federalist and viewers at Fox News. Their feedback and support gave me the courage to speak out in a city where conformity is demanded. While this book focuses on the key players in Washington, D.C., Carrie and I tried not to lose sight of the American people and their frustration with beltway politics.

  Immanuel Lutheran Church, my spiritual home, continued its decades of support. Thank you to Pastor Christopher Esget for spiritual care. My friend Dolores Hardtke’s regular encouragement over the years has been life-changing. Thank you to Kara Lloyd for the help and friendship. Many friends emotionally supported me in this process, none as much as Matthew Braun and Julia Habrecht. Thank you for listening to my stories and for unending hospitality. I thank God he brought them into my life. Thank you to Mary Diamond Stirewalt for pushing me to do broadcast work, teaching me how to do it, and for doing so much with so little credit and to Liz Sheld for a little bit of everything.

  Thank you also to my parents, Larry and Carolyn Ziegler, and my siblings, Kirsten Pratt and Erich Ziegler, for putting up with me throughout my challenging adolescence, and inculcating in me a love of the Constitution. I will never forget watching the Thomas hearings with my mother while traveling through California that fall. My parents’ conversations and debates stayed with me, as did their gracious giving of time to discuss politics, economics, and, most importantly, our Christian faith. Thank you also to my aunts and uncles, cousins, and in-laws, particularly Bill and Kathy Hemingway, for their unflinching support. A special word of thanks for my friends Erica Beeney Wyatt and Patrice Wittrig Stilley, whose intelligence inspired me and challenged me to reach new heights.

  Because of an implausibly short timeline, my husband and children spent months without my full participation in home life. My children took to sleeping in my office to spend time with me, which simultaneously wracked me with guilt and gave me such comfort on long nights. Mark, as he has for nearly thirteen years, kept us all healthy and happy. He has always been my biggest supporter, and I am thankful God blessed me with such an amazing head to our household. The love in my heart for him is inexpressible. When Carrie and I began this project, Mark helped us envision what it could be, encouraged us to emph
asize storytelling, and pushed us over the finish line.

  About the Authors

  Mollie Ziegler Hemingway is a senior editor at The Federalist and a contributor to Fox News, where she regularly appears on Special Report with Bret Baier. Her work has appeared in the Wall Street Journal, USA Today, the Los Angeles Times, the Guardian, the Washington Post, CNN, Claremont Review of Books, National Review, Christianity Today, Federal Times, Radio & Records, and many other publications. Mollie was a Phillips Foundation Journalism Fellow in 2004, a Lincoln Fellow of the Claremont Institute in 2014, and the Eugene C. Pulliam Distinguished Fellow in Journalism at Hillsdale College in 2016. She earned a bachelor’s degree in economics from the University of Colorado and serves on the board of the News Literacy Project and the Fund for American Studies’ Institute on Political Journalism.

  Carrie Severino is chief counsel and policy director of the Judicial Crisis Network, the most important outside group advancing the Kavanaugh nomination. An expert on the confirmation process, Mrs. Severino has been extensively quoted in the media and regularly appears on television, including MSNBC, FOX, CNN, C-SPAN, and ABC’s This Week. Carrie has written and spoken on a wide range of judicial issues, particularly the constitutional limits on government, the federal nomination process, and state judicial selection. She has testified before Congress on constitutional issues and briefed senators on judicial nominations, and she regularly files briefs in high-profile Supreme Court cases. Before joining JCN, she was an Olin-Searle Fellow and a Dean’s Visiting Scholar at Georgetown University Law Center. She was previously a law clerk to Justice Clarence Thomas of the U.S. Supreme Court and to Judge David B. Sentelle of the U.S. Court of Appeals for the D.C. Circuit. She received her bachelor’s degree from Duke University, her master’s degree in linguistics from Michigan State University, and her law degree, cum laude, from Harvard University.