Justice on Trial: The Kavanaugh Confirmation and the Future of the Supreme Court
Page 36
46. Ibid., 110, 121.
47. “Senator Kennedy Opposes Bork Nomination,” C-SPAN, July 1, 1987, https://www.c-span.org/video/?c4594844/senator-kennedy-opposes-bork-nomination.
48. 432 U.S. 43 (1977).
49. Jeffrey Toobin, “Jeffrey Toobin: Kennedy and the Court,” New Yorker, August 26, 2009, https://www.newyorker.com/news/news-desk/jeffrey-toobin-kennedy-and-the-court.
50. PFAWdotorg, “1987 Robert Bork TV ad, narrated by Gregory Peck,” YouTube video, July 16, 2008, https://www.youtube.com/watch?v=NpFe10lkF3Y.
51. Maltese, The Selling of Supreme Court Nominees, 88.
52. Ibid., 133.
53. Statement of Honorable Edward M. Kennedy, “Nomination of Justice William Hubbs Rehnquist,” United States Senate Committee on the Judiciary, 99th Congress, 2nd Session. (Washington, D.C.: U.S. Government Printing Office, 1987), 14.
54. Office of Legal Policy, Department of Justice, By and With the Advice and Consent of the Senate: The Bork and Kennedy Confirmation Hearings and the Implications for Judicial Independence (Washington: American Conservative Union, January 31, 1989), 6.
55. “bork,” Merriam-Webster’s Collegiate Dictionary, 11th ed. (Springfield, MA: Merriam-Webster, 2003), https://www.merriam-webster.com/dictionary/bork.
56. “Robert Bork Discusses on the Committee Report of His Nomination,” C-SPAN, October 9, 1987, https://www.c-span.org/video/?825-1/robert-bork-discusses-committee-report-nomination&start=36.
57. Jan Crawford Greenburg, Supreme Conflict, 53.
58. Linda Greenhouse and Special to the New York Times, “Reagan Nominates Anthony Kennedy to Supreme Court,” New York Times, November 12, 1987, A1.
59. Associated Press, “Reagan, on 3rd Try, Picks Californian for High Court: ‘Bit Wiser’ After Two Defeats,” Los Angeles Times, November 11, 1987, http://articles.latimes.com/1987-11-11/news/mn-13624_1_supreme-court.
60. Linda Greenhouse, “While Examining Kennedy, Senators Look Back at Bork,” New York Times, December 20, 1987, section 4, page 1.
61. Linda Greenhouse and Special to the New York Times, “The Year the Court Turned to the Right,” New York Times, July 7, 1989, A1.
62. “Chief Justice Souter?” Wall Street Journal, February 29, 2000, https://www.wsj.com/articles/SB951789438683921325.
63. Jeremy Rabkin, “The Sorry Tale of David Souter, Stealth Justice,” Weekly Standard, November 6, 1995.
64. John Fund, “The Borking Begins,” Wall Street Journal, January 8, 2001.
65. Senator Warren Rudman, a Republican who endorsed Souter, later said he would have voted against Thomas if he had been the decisive vote and declared that confirming Thomas was “a vote I’m not proud of.” “Interview with Warren Rudman,” interview by Janet E. Heininger and Stephen Knott, Edward M. Kennedy Oral History Project, May 16, 2006; Kevin Merida and Michael Fletcher, Supreme Discomfort: The Divided Soul of Clarence Thomas (New York: Doubleday, 2007), 203.
66. Ross, “The Role of Judicial Issues in Presidential Campaigns,” 461.
67. Ibid.
68. National Federation of Independent Business v. Sebelius, 567 U.S. 519 (2012); King v. Burwell, 576 U.S. ___ (2015).
69. Joan Biskupic, The Chief (New York: Basic Books, 2019): 234–48.
70. Colin Campbell, “Donald Trump dials up his attacks: ‘Ted Cruz gave us Obamacare,’ ” Business Insider, February 4, 2016, https://www.businessinsider.com/donald-trump-ted-cruz-obamacare-2016-2.
71. Fred Barnes, “Bush Scalia,” Weekly Standard, July 5, 1999, https://www.weeklystandard.com/fred-barnes/bush-scalia.
72. “October 8, 2004 Debate Transcript,” Commission on Presidential Debates, October 8, 2004, https://www.debates.org/voter-education/debate-transcripts/october-8-2004-debate-transcript/.
73. Robert Barnes, “How the Bush-nominated Chief Justice Roberts became target in GOP debates,” Washington Post, September 17, 2015, https://www.washingtonpost.com/politics/chief-justice-roberts-is-target-of-conservative-fire-in-gop-debates/2015/09/17/c66c62ba-5d43-11e5-8e9e-dce8a2a2a679_story.html?utm_term=.2dc37c186d9c.
74. Jessica Hopper, “Ted Cruz Plans to Filibuster Any Supreme Court Nominee Made by President Obama,” ABC News, February 14, 2016, https://abcnews.go.com/Politics/ted-cruz-plans-filibuster-supreme-court-nominee-made/story?id=36922959.
75. Jon Prior, “GOP Candidates spar over Chief Justice Roberts,” Politico, February 14, 2016, https://www.politico.com/story/2016/02/scalia-roberts-supreme-court-justices-219284.
76. Melinda Henneberger, “In Death, Scalia may Succeed in Blocking Trump,” Roll Call, February 15, 2016, https://www.rollcall.com/news/in-death-scalia-may-succeed-in-blocking-trump.
77. Textualism is what Justice Scalia referred to as the “commonsensical interpretive principle” that judges should interpret the words of a statute according to their meanings as reasonably understood in context when they were enacted. Antonin Scalia and Bryan A. Garner, Reading Law: The Interpretation of Legal Texts (St. Paul: Thomson/West: 2012), 15.
78. “Donald Trump News Conference,” C-SPAN, March 21, 2016, https://www.c-span.org/video/?407049-1/donald-trump-news-conference-washington-dc&start=2330.
79. Malcolm explains that he considered putting together a longer list of judges and would have included Judges Neil Gorsuch and Ray Kethledge, who ultimately made it onto the Trump list. But given the time crunch and his inability to vet so many people quickly, he settled on a shorter but safer list with the qualification that he didn’t view it as exclusive.
80. It was a good call. Judge Rogers Brown retired just eight months into Trump’s presidency and would be replaced by McGahn’s own deputy, Greg Katsas.
81. Don Willett (@JusticeWillett), “Donald Trump haiku—Who would the Donald Name to #SCOTUS? The mind reels. *weeps—can’t finish tweet*,” Twitter, June 16, 2015, 10:09 a.m., https://twitter.com/JusticeWillett/status/610856791291916290.
82. Lawrence Hurley, “Trump’s Supreme Court list: all conservative, some provocative,” Reuters, May 19, 2016, https://www.reuters.com/article/us-usa-election-trump-court-list/trumps-supreme-court-list-all-conservative-some-provocative-idUSKCN0YA2XV; Stephanie Mencimer, “Trump’s Supreme Court Short List is Really, Really Anti-Contraception,” Mother Jones, May 18, 2016, https://www.motherjones.com/politics/2016/05/trumps-supreme-court-nominees-nod-towards-evangelicals/; Nina Totenberg, “Trump’s Supreme Court List Might Reassure Conservatives, But Leaves Out Big Names,” NPR, May 18, 2016, https://www.npr.org/2016/05/18/478609623/trumps-supreme-court-list-might-reassure-conservatives-but-leaves-off-big-names.
83. Adam Liptak, “Trump’s Supreme Court List: Ivy League is Out, the Heartland is In,” New York Times, November 15, 2016, A21.
84. Ted Cruz, Facebook, September 23, 2016, https://www.facebook.com/tedcruzpage/posts/10154476728267464.
85. While the Garland nomination threatened to be big news earlier in the campaign, it became such a non-issue that the Obama nominee’s name wasn’t even mentioned during the Democratic National Committee convention in Philadelphia. Concern for the courts simply did not motivate Democratic voters the way that it was energizing Republicans.
86. Mark Tushnet, “Abandoning Defensive Crouch Liberal Constitutionalism,” Balkinization, May 6, 2016, https://balkin.blogspot.com/2016/05/abandoning-defensive-crouch-liberal.html.
87. Citizens United v. Federal Election Commission, 558 U.S. 310 (2010).
88. Philip Bump, “A quarter of Republicans voted for Trump to get Supreme Court picks – and it paid off,” Washington Post, June 26, 2018, https://www.washingtonpost.com/news/politics/wp/2018/06/26/a-quarter-of-republicans-voted-for-trump-to-get-supreme-court-picks-and-it-paid-off/.
89. Philip Rucker and Seung Min Kim, “ ‘We have to pick a great one’: Inside Trump’s plan for a new Supreme Court justice,” Washington Post, June 30, 2018, https://www.washingtonpost.com/politics/we-have-to-pick-a-great-one-inside-trumps-plan-for-a-new-supreme-court-justice/2018/06/30/610dcd4e-7bb0-11e8-80be-6d32e182a3bc_story.html.
Chapter Three: Complicit in Evil
1. Robin Givhan, “Back to the ’50s/Roberts family image was a little too perfect,” SFGate, July 31, 2005, https://www.sfgate.com/living/article/BACK-TO-THE-50S-Roberts-family-image-was-a-2651504.php.
2. “Transcript of President Bush’s Nomination of Miers to the Supreme Court,” National Public Radio, October 3, 2005, https://www.npr.org/templates/story/story.php?storyId=4933801.
3. “Remarks by President Trump Announcing Judge Brett M. Kavanaugh as the Nominee for Associate Justice of the Supreme Court of the United States,” White House website, July 9, 2018, https://www.whitehouse.gov/briefings-statements/remarks-president-trump-announcing-judge-brett-m-kavanaugh-nominee-associate-justice-supreme-court-united-states/.
4. “The Confirmation Hearings of Judge David Souter: The Legal and Political Context,” NARAL, https://www.govinfo.gov/content/pkg/GPO-CHRG-SOUTER/pdf/GPO-CHRG-SOUTER-5-48-1.pdf, 371.
5. “Trump Announces Brett Kavanaugh as Supreme Court Nominee: Full Video and Transcript,” New York Times, July 9, 2018, https://www.nytimes.com/2018/07/09/us/politics/trump-supreme-court-announcement-transcript.html.
6. Elena Kagan, “Speech on Being Nominated to Serve as U.S. Supreme Court Justice,” American Rhetoric website, May 10, 2010, https://www.americanrhetoric.com/speeches/elenakaganusscnomination.htm.
7. Sonia Sotomayor, “Full Text: Judge Sonia Sotomayor’s Speech,” Time, May 26, 2009, http://content.time.com/time/politics/article/0,8599,1900940,00.html.
8. “WTAS: Continued Support for Judge Brett Kavanaugh’s Nomination to the Supreme Court,” White House website, July 10, 2018, https://www.whitehouse.gov/briefings-statements/wtas-continued-support-judge-brett-kavanaughs-nomination-supreme-court/.
9. Aaron Blake, “Brett Kavanaugh’s remarkably political intro speech,” Washington Post, July 10, 2018, https://www.washingtonpost.com/news/the-fix/wp/2018/07/10/brett-kavanaughs-remarkably-political-intro-speech/.
10. “Colbert Has A Lot To Say About Trump’s Supreme Court Pick Brett Kavanaugh, ‘Cover Model for Generic Dad’s Monthly,’ ” Digg, http://digg.com/video/brett-kavanaugh-colbert.
11. NARAL (@NARAL), “We’ll be DAMNED if we’re going to let five men—including some frat boy named Brett—strip us of our hard-won bodily autonomy and reproductive rights. #StopKavanaugh #SaveRoe,” Twitter, July 10, 2018, 5:04 p.m., https://twitter.com/NARAL/status/1016835475494064128.
12. Aaron Blake, “Brett Kavanaugh’s first claim as a Supreme Court nominee was bizarre,” Washington Post, July 10, 2018, https://www.washingtonpost.com/news/the-fix/wp/2018/07/10/brett-kavanaughs-first-claim-as-a-supreme-court-nominee-was-bizarre/.
13. “Trump Announces Brett Kavanaugh as Supreme Court Nominee: Full Video and Transcript,” New York Times, July 9, 2018, https://www.nytimes.com/2018/07/09/us/politics/trump-supreme-court-announcement-transcript.html.
14. Bob Casey (@SenBobCasey), “I will oppose the nomination the President will make tonight because it represents a corrupt bargain with the far Right, big corporations, and Washington special interests,” Twitter, July 9, 2018, 8:50 a.m., https://twitter.com/senbobcasey/status/1016348863328931840?lang=en.
15. The Editorial Board, “Democrats: Do Not Surrender the Judiciary,” New York Times, July 6, 2018, https://www.nytimes.com/2018/07/06/opinion/democrats-fight-trump-supreme-court.html.
16. “Schumer Statement on Nomination of Judge Brett Kavanaugh to the Supreme Court,” Senate Democrats website, July 9, 2018, https://www.democrats.senate.gov/schumer-statement-on-nomination-of-judge-brett-kavanaugh-to-the-supreme-court.
17. William Cummings, “Women’s March slammed for goof in statement on Kavanaugh Supreme Court nomination,” USA Today, July 10, 2018, https://www.usatoday.com/story/news/politics/onpolitics/2018/07/10/womens-march-gaffe-kavanaugh-statement-derided-and-mocked/773650002/.
18. Jim Geraghty (@jimgeraghty), “Somebody rushed this out!” Twitter, July 9, 2018, 6:12 p.m., https://twitter.com/jimgeraghty/status/1016490300364206080?ref_src=twsrc%5Etfw%7Ctwcamp%5Etweetembed%7Ctwterm%5E1016490300364206080&ref_url=https%3A%2F%2Fwww.washingtontimes.com%2Fnews%2F2018%2Fjul%2F9%2Fwomens-march-mocked-press-release-opposing-supreme%2F.
19. Ben Sasse (@BenSasse), “Went to the Supreme Court to talk to the protestors. But it turns out to be a Mad-Lib protest. #Fill-In-The-Blank,” Twitter, January 31, 2017, 7:01 p.m., https://twitter.com/BenSasse/status/826626482642489345.
20. Davis Richardson, “Liberal Activist Groups Prepared to Protest All of Trump’s SCOTUS Picks,” Observer, July 10, 2018, https://observer.com/2018/07/liberal-activist-groups-protest-trump-scotus-pick/.
21. “Center for American Progress Rally at Supreme Court,” C-SPAN, July 9, 2018, https://www.c-span.org/video/?448152-1/lawmakers-activists-protest-judge-brett-kavanaugh-nomination-supreme-court.
22. After working on President Bill Clinton’s 1996 campaign, she worked as an aide in his White House. She also worked for Hillary Clinton on her senate campaign, in her senate office, and on her 2008 and 2016 campaigns. She was then one of the four leaders of Hillary Clinton’s 2016 transition team, during which time her emails to John Podesta were exposed on WikiLeaks. She was so close to the Clinton family that then-First Lady Hillary Clinton threw her a baby shower at the White House. See “Neera Tanden,” Influence Watch, https://www.influencewatch.org/person/neera-tanden/; “Center for American Progress Rally at Supreme Court,” C-SPAN, July 9, 2018, https://www.c-span.org/video/?448152-1/lawmakers-activists-protest-judge-brett-kavanaugh-nomination-supreme-court.
23. Shannon Bream (@ShannonBream), “Very few times I’ve felt threatened while out in the field. The mood here tonight is very volatile. Law enforcement appears to be closing down 1st Street in front of SCOTUS,” Twitter, July 9, 2018, 6:31 p.m., https://twitter.com/shannonbream/status/1016495007249911809.
24. Tony Perkins, “On Trump’s pick of Kavanaugh, conservatives should trust but verify,” Washington Examiner, July 11, 2018, https://www.washingtonexaminer.com/opinion/on-trumps-pick-of-kavanaugh-conservatives-should-trust-but-verify.
25. Alyssa Milano (@Alyssa_Milano), “TRUMP SHOULD NOT BE ABLE TO CHOOSE A LIFETIME APPOINTEE WHILE HE IS UNDER FEDERAL INVESTIGATION. FULL STOP,” Twitter, Jun 27, 2018, 10:20 p.m., https://twitter.com/Alyssa_Milano/status/1012204061817491456.
26. Paul Schiff Berman, “A Better Reason to Delay Kennedy’s Replacement,” New York Times, June 29, 2018, https://www.nytimes.com/2018/06/29/opinion/a-better-reason-to-delay-kennedys-replacement.html.
27. Adam J. White, “Rage at the End of Justice Kennedy’s Camelot,” Weekly Standard, June 30, 2018, https://www.weeklystandard.com/adam-j-white/liberal-law-professors-want-to-pack-the-supreme-court-after-trump-replaces-kennedy.
28. “Democrats Agree: Don’t Delay SCOTUS Nominee,” John Cornyn Senate website, June 28, 2018, https://www.cornyn.senate.gov/content/news/democrats-agree-don%E2%80%99t-delay-scotus-nominee.
29. Mark Walsh, “A ‘view’ from the East Room: The Brett Kavanaugh story,” SCOTUSblog, July 10, 2018, https://www.scotusblog.com/2018/07/a-view-from-the-east-room-the-brett-kavanaugh-story/.
30. The organization’s name changed in 2010 as it expanded its reach into more areas than simply confirmations. Although the group was active in the Sotomayor and Kagan confirmations during the Obama administration, as well as in the fights over the use of the filibuster, there was a limit to how much could be done with a hostile administration. The group took the opportunity to expand its work into state judicial selection as well as commentary on major Supreme Court cases from a perspective of the same textualist and originalist philosophy it promoted in judicial nominees.
31. Patrick B. McGuigan and Dawn M. Weyrich, Ninth Justice: The Fight for Bork (Lanham, MD: University Press of America, 1990), 252–53.
32. R. H. Bork Jr., “The Media, Special Interests, and the Bork Nom
ination,” in McGuigan and Weyrich, Ninth Justice: The Fight for Bork (Lanham, MD: University Press of America, 1990), 252.
33. Patrick B. McGuigan and Dawn M. Weyrich, Ninth Justice: The Fight for Bork (Washington D.C.: Free Congress Research and Education Foundation, 1990), 252 (media essay by Robert Bork Jr.).
34. The group had previously budgeted $7 million in support of Senator McConnell’s efforts to keep the Scalia vacancy open to “let the people decide” on who would pick the next Supreme Court justice. When that effort was successful, they launched a $10 million campaign to confirm Gorsuch.
35. Amy Brittain, “Supreme Court nominee Brett Kavanaugh piled up credit card debt by purchasing Nationals tickets, White House says,” Washington Post, July 11, 2018, https://www.washingtonpost.com/investigations/supreme-court-nominee-brett-kavanaugh-piled-up-credit-card-debt-by-purchasing-nationals-tickets-white-house-says/2018/07/11/8e3ad7d6-8460-11e8-9e80-403a221946a7_story.html.
36. Ariana Tobin and Justin Elliott, “Did You Go to a Washington Nationals Game With Supreme Court Nominee Brett Kavanaugh?” ProPublica, August 13, 2018, https://www.propublica.org/getinvolved/brett-kavanaugh-nationals-baseball-supreme-court.
37. Hailey Fuchs and Adelaide Feibel, “A sports junkie who are pasta with ketchup: Law school friends reflect on Kavanaugh’s time at YLS,” Yale Daily News, July 12, 2018, https://yaledailynews.com/blog/2018/07/12/a-sports-junkie-who-ate-pasta-with-ketchup-law-school-friends-reflect-on-kavanaughs-time-at-yls/.
38. “Kavanaugh Nomination Falters After Washington Post Publishes Shocking Editorial Claiming He Forgot Daughter’s Piano Recital,” The Onion, July 13, 2018, https://politics.theonion.com/kavanaugh-nomination-falters-after-washington-post-publ-1827581330.
39. Emily’s List v. Federal Election Commission, 581 F.3d 1 (2009).
40. Neera Tanden (@neeratanden), “Just to state this: Justice Kennedy’s son gave a billion dollar loan to Trump when no one would give him a dime, and Justice Kennedy has been ruling in favor of the Trump Administration position for 2 years as the Court decide 5-4 case after 5-4 case,” Twitter, June 29, 2018, 4:54 a.m., https://twitter.com/neeratanden/status/1012665534297624577; “Can you imagine if this happened in the Obama Administration? If this were Justice Kagan and Obama? Both would be impeached immediately,” Twitter June 29, 2018, 4:54 a.m., https://twitter.com/neeratanden/status/1012665696516562945. The Washington Post fact-checker gave her statements four pinnochios. See Salvador Rizzo, “The thinly sourced theories about Trump’s loans and Justice Kennedy’s son,” Washington Post, July 12, 2018, https://www.washingtonpost.com/news/fact-checker/wp/2018/07/12/untangling-the-links-between-trump-deutsche-bank-and-justice-kennedys-son/?utm_term=.2c940c9721d4.