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

by Mollie Hemingway

  51. Farnoush Amiri, “Yale law professor denies reports she groomed Kavanaugh’s Prospective Clerks,” NBC News, September 22, 2018, https://www.nbcnews.com/politics/politics-news/yale-law-professor-denies-reports-she-groomed-kavanaugh-s-prospective-n912226.

  52. Kaitlan Collins, “Former Classmate of Kavanaugh’s denies being at party in sexual assault allegation,” CNN, September 19, 2018, https://www.cnn.com/2018/09/18/politics/pj-smyth-brett-kavanaugh/index.html.

  53. Susan Heavey and Tim Ahmann, “Grassley sets Friday deadline for Trump top court pick Kavanaugh’s accuser,” Reuters, https://www.reuters.com/article/us-usa-court-kavanaugh-testimony-grassle/grassley-sets-friday-deadline-for-trump-top-court-pick-kavanaughs-accuser-idUSKCN1LZ2GJ.

  54. Ed Whelan (@EdWhelanEPPC), Twitter, “I made an appalling mistake of judgment in posting the tweet thread in a way that identified Kavanaugh’s Georgetown Prep classmate. I take full responsibility for that mistake, and I deeply apologize for it. I realize that does not undo the mistake,” Twitter, September 21, 2018, 5:38 a.m., https://twitter.com/edwhelaneppc/status/1043117304152817664.

  55. Elana Schor and Burgess Everett, “Grassley extends deadline on Kavanaugh accuser’s decision to testify,” Politico, September 21, 2018, https://www.politico.com/story/2018/09/21/trump-kavanaugh-christine-blasey-ford-charges-834664.

  56. Annie Karni, “Kavanaugh accuser leans on Democratic operative for advice,” Politico, September 20, 2018, https://www.politico.com/story/2018/09/20/kavanaugh-accuser-democratic-operative-advice-833013.

  57. Ari Redbord, “Rock the Leftist Vote,” Weekly Standard, July 28, 1996, https://www.weeklystandard.com/ari-redbord/rock-the-leftist-vote.

  58. Frieda Powers, “Advisor to Kavanaugh’s accuser was caught on audio in July predicting a coming plot to destroy nomination,” BizPac Review website, September 22, 2018, https://www.bizpacreview.com/2018/09/22/advisor-to-kavanaughs-accuser-was-caught-on-audio-in-july-predicting-a-coming-plot-to-destroy-nomination-676531.

  59. Donald J. Trump (@realDonaldTrump), “I have no doubt that, if the attack on Dr. Ford was as bad as she says, charges would have been immediately filed with local Law Enforcement Authorities by either her or her loving parents. I ask that she bring those filings forward so that we can learn date, time, and place!” Twitter, September 21, 2018, 6:14 a.m., https://twitter.com/realdonaldtrump/status/1043126336473055235.

  60. Laurie Kellman, “How it looks: Optics key in fight over Kavanaugh hearing,” AP News, September 21, 2018, https://www.apnews.com/76086187160044e99b7e026ca64722fc.

  61. Jonathan V. Last, “It’s Time for Some Brett Kavanaugh Game Theory,” Weekly Standard, September 21, 2018, https://www.weeklystandard.com/jonathan-v-last/brett-kavanaugh-what-happens-if-trump-withdraws-the-nomination-over-the-christine-ford-allegations.

  62. Paul McLeod, “Mitch McConnell Told Supporters Senate Republicans Will ‘Plow Right Through’ To Confirm Kavanaugh,” BuzzFeed News, September 21, 2018, https://www.buzzfeednews.com/article/paulmcleod/mcconnell-kavanaugh-supreme-court-vote.

  63. Robert Bork, Jr. (@Robert_Bork_Jr), “Yes. Yes, I can,” Twitter, October 6, 2018, 9:57 a.m., https://twitter.com/Robert_Bork_Jr/status/1048618238790254592.

  64. Alex Pappas, “Grassley sets Friday deadline for Kavanaugh accuser to say if she will testify,” Fox News, September 20, 2018, https://www.foxnews.com/politics/grassley-sets-friday-deadline-for-kavanaugh-accuser-to-say-if-she-will-testify.

  65. Schor and Everett, “Grassley extends deadline.”

  66. Chuck Grassley (@ChuckGrassley), “With all the extensions we give Dr Ford to decide if she still wants to testify to the Senate I feel like I’m playing 2nd trombone in the judiciary orchestra and Schumer is the conductor,” Twitter, September 21, 2018, 8:55pm, https://twitter.com/chuckgrassley/status/1043348132657025025.

  67. “Final Agreement document,” from Mollie Ziegler Hemingway email, September 23, 2018.

  68. Kevin Breuninger and Javier E. David, “Senate Judiciary Committee threatens to vote on Kavanaugh nomination if Ford doesn’t accept proposal to testify,” CNBC, September 21, 2018, https://www.cnbc.com/2018/09/21/gop-counter-offer-to-brett-kavanaugh-accuser-proposes-wednesday-hearing.html.

  69. Chuck Grassley (@ChuckGrassley), “Five times now we hv granted extension for Dr Ford to decide if she wants to proceed w her desire stated one wk ago that she wants to tell senate her story Dr Ford if u changed ur mind say so so we can move on I want to hear ur testimony. Come to us or we to u,” Twitter, September 21, 2018, 8:27 p.m., https://twitter.com/chuckgrassley/status/1043341000989712384.

  70. Chuck Grassley (@ChuckGrassley), “Judge Kavanaugh I just granted another extension to Dr Ford to decide if she wants to proceed w the statement she made last week to testify to the senate She shld decide so we can move on I want to hear her. I hope u understand. It’s not my normal approach to b indecisive,” Twitter, September 21, 2018, 8:42 p.m., https://twitter.com/chuckgrassley/status/1043344767684366336.

  71. MJ Lee, “Ford told friends she is uncomfortable in enclosed spaces, airplanes,” CNN, September 23, 2018, https://www.cnn.com/2018/09/20/politics/ford-uncomfortable-in-enclosed-spaces-airplanes/index.html.

  72. Jennifer Rubin (@JRubinBlogger), “So far today, Trump attacked Ford, unleashing a storm of MeToo accounts and aggravating Collins. They tell a woman who needs to drive cross country she can’t have one extra day. None of these people should be in office,” Twitter, September 21, 2018, 12:43 p.m., https://twitter.com/jrubinblogger/status/1043224319407652867.

  73. Heidi Przybyla, “Spokesman for GOP on Kavanaugh nomination resigns; has been accused of harassment in the past,” NBC News, September 22, 2018, https://www.nbcnews.com/politics/supreme-court/spokesman-gop-kavanaugh-nomination-resigns-has-been-accused-harassment-past-n912156.

  74. Seung Min Kim, Sean Sullivan, and Emma Brown, “Christine Blasey Ford moves closer to deal with Senate Republicans to testify against Kavanaugh,” Washington Post, September 23, 2018, https://www.washingtonpost.com/politics/lawyers-for-christine-blasey-ford-say-she-has-accepted-senate-judiciary-committees-request-to-testify-against-kavanaugh/2018/09/22/e8199c6a-be8f-11e8-8792-78719177250f_story.html.

  75. Marcia Coyle and Tony Mauro, “Veteran Prosecutor Michael Bromwich Joins Kavanaugh Accuser’s Legal Team,” National Law Journal, September 25, 2018, https://www.law.com/nationallawjournal/2018/09/22/veteran-prosecutor-michael-bromwich-joins-kavanagh-accusers-legal-team/.

  76. Ariane de Vogue, “Committee contacts Ford’s friend about party; ‘she has no recollection’ of it, lawyer says,” CNN, September 22, 2018, https://amp.cnn.com/cnn/2018/09/22/politics/kavanaugh-ford-accuser-nomination/index.html.

  77. Emma Brown, “California professor, writer of confidential Brett Kavanaugh letter, speaks out about her allegations of sexual assault,” Washington Post, September 16, 2018, https://www.washingtonpost.com/investigations/california-professor-writer-of-confidential-brett-kavanaugh-letter-speaks-out-about-her-allegation-of-sexual-assault/2018/09/16/46982194-b846-11e8-94eb-3bd52dfe917b_story.html.

  78. Kim, Sullivan, Brown, “Christine Blasey Ford moves closer.”

  79. Kimberley Strassel (@KimStrassel), “11) Wow. ‘Before her name became public, Ford told . . . ’ That is WaPo admitting that it had the name, and had Ford’s response to what would clearly be a Keyser denial, but NEVER PUT IT OUT THERE. Again, why? A lot of people have a lot questions to answer,” Twitter, September 22, 2018, 8:47 p.m., https://twitter.com/KimStrassel/status/1043708375299584000.

  80. Ariane de Vogue, “Committee contacts Ford’s friend.”

  81. Sarah Young, Jesus Calling: Enjoying Peace in His Presence (Nashville: Thomas Nelson, 2004), 272.

  Chapter Seven: Too Big To Fail

  1. “Another Woman?” Drudge Report Archive, September 23, 2018, http://www.drudgereportarchives.com/data/2018/09/23/index.htm?s=flag.

  2. This New Yorker story about the Ramirez allegations will be quoted throughout this chapter. Ronan Farrow and Jane Mayer, “Senate
Democrats Investigate A New Allegation of Sexual Misconduct, From Brett Kavanaugh’s College Years,” New Yorker, September 23, 2018, https://www.newyorker.com/news/news-desk/senate-democrats-investigate-a-new-allegation-of-sexual-misconduct-from-the-supreme-court-nominee-brett-kavanaughs-college-years-deborah-ramirez.

  3. Madison Feller, “The New Yorker’s Jane Mayer Is Holding the World’s Most Powerful Men Accountable,” Elle, October 8, 2018, https://www.elle.com/culture/career-politics/a23626662/new-yorker-jane-mayer-brett-kavanaugh-ronan-farrow/?platform=hootsuite.

  4. John McCormack, “Kavanaugh Classmate Named in Letter Strongly Denies Allegations of Misconduct,” Weekly Standard, September 14, 2018, https://www.weeklystandard.com/john-mccormack/kavanaugh-classmate-named-in-letter-strongly-denies-allegations-of-misconduct.

  5. Michael Avenatti (@MichaelAvenatti), Twitter, September 23, 2018, 4:33 p.m., https://twitter.com/MichaelAvenatti/status/1044006928416825344.

  6. Michael Avenatti (@MichaelAvenatti), Twitter, September 23, 2018, 6:16 p.m., https://twitter.com/michaelavenatti/status/1044032678951960576.

  7. It was a sentiment echoed by previous Supreme Court nominees, such as Nixon’s defeated nominee Clement Haynsworth. He was nominated in 1969 for the vacancy left by the resignation of Abe Fortas, whose elevation to chief justice had been blocked in 1968 amid criticism of his political activity as a justice. Fortas resigned after the revelation of further conflicts of interest and ethical concerns. Haynsworth was a respected Fourth Circuit judge but also a Republican and a Southerner replacing one of the Court’s strong liberals, whose defeat was still a sore spot. While his life’s work showed him to be relatively moderate, the NAACP and AFL-CIO charged that he supported segregation and corporate interests, citing the outcomes of certain opinions rather than the legal reasoning buttressing them. They were soon joined by other groups raising concerns. A concerted campaign against Haynsworth gained steam because it tapped into the same ethical concerns that had derailed the Fortas nomination. Haynsworth was accused of an incredibly complex conflict of interest. He had ruled in favor of a firm that had a relationship with a vending machine firm he’d once served on the board of. He held stock in the vending firm, yet didn’t recuse, because he did not know the two businesses were related. Although legal analysists ultimately concluded no real conflict had been present, the media coverage was brutal, with one newspaper saying he “appeared edgy and stuttering.” He had a slight speech impediment, but the description left the impression he was hiding something. And the politics were horrible, as the very Republicans he needed for confirmation had led the charge opposing Fortas for superficially similar reasons. The White House hung back from the fight until he was on the Senate floor, then engaged in a heavy-handed campaign that may have cost Haynsworth even more votes. Two weeks after his nomination failed, he met with Nixon in the White House. Even so soon after the defeat, he seemed to have recovered enough to joke that, after reading the New York Times during his nomination, he had become convinced that anyone as bad as he was didn’t deserve to be in the Supreme Court.

  8. “What You Need to Know About Allegations Made in The New Yorker Article on Judge Brett Kavanaugh,” Fact Sheets, White House website, September 23, 2018, https://www.whitehouse.gov/briefings-statements/need-know-allegations-made-new-yorker-article-judge-brett-kavanaugh/.

  9. Coffin v United States, 156 U.S. 432, 454–55 (1895).

  10. See, e.g., David Lisa, Lori Gardinier, Sarah C. Nicksa, and Ashley M. Cote, “False Allegations of Sexual Assault: An Analysis of Ten Years of Reported Cases,” Violence Against Women 16, no. 12 (2010): 1318–1334; Liz Kelly, Jo Lovett and Linda Regan, “A gap or a chasm? Attrition in reported rape cases,” Home Office Research Study 293, (London: Home Office Research, Development and Statistics Directorate, 2005).

  11. CNN Politics (@CNNPolitics), “CNN’s Jake Tapper: ‘Doesn’t Kavanaugh have the same presumption of innocence as anyone else in America?’ Sen. Mazie Hirono: ‘I put his denial in the context of everything that I know about him in terms of how he approaches his cases’ #CNNSOTU,” Twitter, September 23, 2018, 6:40 a.m., https://twitter.com/CNNPolitics/status/1043857714860834821.

  12. David Rutz, “Coons: Kavanaugh ‘Bears the Burden of Disproving These Allegations,” Free Beacon, September 24, 2018, https://freebeacon.com/politics/coons-kavanaugh-bears-the-burden-of-disproving-these-allegations/.

  13. Benny Johnson (@bennyjohnson), “Chuck Schumer, in his own words, Brett Kavanaugh has ‘No presumption of innocence.’ This explains much of the Democrats approach to these accusations,” Twitter, September 25, 2018, 1:19 p.m., https://twitter.com/bennyjohnsozn/status/1044682895682662400.

  14. U.S. Congress, Senate Judiciary Committee, Nomination of Judge Clarence Thomas to be Associate Justice of the Supreme Court of the United States, 102nd Cong., Pt.4, (Washington, D.C.: G.P.O., 1993), 268, https://www.congress.gov/supreme-court/GPO-CHRG-THOMAS-4.pdf.

  15. Philip Rucker, “Joe Biden: When a woman alleges sexual assault, presume she is telling the truth,” Washington Post, September 17, 2018, https://www.washingtonpost.com/politics/joe-biden-when-a-woman-alleges-sexual-assault-presume-she-is-telling-the-truth/2018/09/17/7718c532-badd-11e8-a8aa-860695e7f3fc_story.html; Remarks of Mitch McConnell, September 26, 2018, 9:30 a.m.

  16. Matt Naham, “Faculty at Brett Kavanaugh’s Alma Mater Are Demanding Screeching Halt to His Confirmation,” Law & Crime website, September 21, 2018, https://lawandcrime.com/high-profile/faculty-at-brett-kavanaughs-alma-mater-are-demanding-screeching-halt-to-his-confirmation/.

  17. Matt Naham, “Yale Law Students Refuse to Go to Class, Stage ‘Sit-in’ Over Brett Kavanaugh Assault Claims,” Law & Crime website, September 24, 2018, https://lawandcrime.com/high-profile/yale-law-students-refuse-to-go-to-class-stage-sit-in-over-brett-kavanaugh-assault-claims/.

  18. Diane Herbst, “Over 1000 Female Yale Grads Sign Letter Supporting Brett Kavanaugh Accusers: ‘We Have Their Backs,’ ” People, September 24, 2018, https://people.com/politics/female-yale-grads-letter-support-brett-kavanaugh-accusers/.

  19. Charles C. W. Cooke, “On The New Yorker’s Grossly Irresponsible Story,” National Review, September 24, 2018, https://www.nationalreview.com/corner/on-the-new-yorkers-grossly-irresponsible-story/.

  20. Sheryl Gay Stolberg and Nicholas Fandos, “Christine Blasey Ford Reaches Deal to Testify at Kavanaugh Hearing,” New York Times, September 23, 2018, https://www.nytimes.com/2018/09/23/us/politics/brett-kavanaugh-christine-blasey-ford-testify.html.

  21. New Day (@NewDay), “This is a fairly high level of evidence for this kind of a case . . . This exceeds the evidentiary basis we’ve used in the past in several cases that were found to be very credible,” says @RonanFarrow of his reporting on the new allegations against Brett Kavanaugh,” Twitter, September 24, 2018, 4:39 a.m., https://twitter.com/NewDay/status/1044189464602370048.

  22. David Marcus, “Ronan Farrow Hurts The Me Too Movement With His Anti-Kavanaugh Hatchet Job,” The Federalist, September 24, 2018, http://thefederalist.com/2018/09/24/ronan-farrow-hurts-me-too-movement-with-his-anti-kavanaugh-smear/.

  23. “Ronan Misfires?” Drudge Report Archives: 19:30:07, September 24, 2018, 7:30 p.m., https://www.drudgereportarchives.com/data/2018/09/25/20180925_004008.htm.

  24. Elizabeth Dias, “A Mormon Women’s Group Seeks a Break in the Process,” New York Times, September 27, 2018, A20.

  25. Jessica Contrera, Ian Shapira, Emma Brown, and Steve Hendrix, “Kavanaugh accuser Christine Blasey Ford moved 3,000 miles to reinvent her life. It wasn’t far enough,” Washington Post, September 27, 2018, https://www.washingtonpost.com/local/christine-blasey-ford-wanted-to-flee-the-us-to-avoid-brett-kavanaugh-now-she-may-testify-against-him/2018/09/22/db942340-bdb1-11e8-8792-78719177250f_story.html.

  26. Aaron Blake, “Mark Judge’s conspicuous absence from Thursday’s hearing,” Washington Post, September 26, 2018, https://www.washingtonpost.com/politics/2018/09/25/how-world-is-mark-judge-not-testifying/.

  27. Elizabe
th Bruenig, “What Do We Owe Her Now?” Washington Post, September 23, 2018, AA04.

  28. Senate Judiciary Committee, Nomination of Judge Clarence Thomas, 252.

  29. John Anthony Maltese, The Selling of Supreme Court Nominees (Baltimore, Maryland: Johns Hopkins University Press, 1995), 97.

  30. Margaret Sullivan (@Sulliview), “Female interviewer, check. Fox News, check. Bill Shine approved, check. When an “exclusive interview” promises to be a challenge-free infomercial,” Twitter, September 24, 2018, 12:50 p.m., https://twitter.com/Sulliview/status/1044313198399238146.

  31. Margaret Sullivan (@Sulliview), “Wife at your side, check,” Twitter, September 24, 2018, 12:53 p.m., https://twitter.com/Sulliview/status/1044313932419268608.

  32. Margaret Sullivan (@Sulliview), “Unquestioning adoration would probably be the right look,” Twitter, September 24, 2018, 12:57 p.m. https://twitter.com/Sulliview/status/1044314975152549889.

  33. Brett Kavanaugh interviewed by Martha MacCullum, “Brett Kavanaugh: Full transcript of Fox Interview,” USA Today, September 24, 2018, https://www.usatoday.com/story/news/nation/2018/09/24/brett-kavanaugh-transcript-interview-fox-news-martha-maccullum/1415548002/.

  34. Emily Heil, “Kavanaugh’s alma mater Georgetown Prep is hiring a director of alumni relations,” Washington Post, October 18, 2018, https://www.washingtonpost.com/arts-entertainment/2018/10/18/kavanaughs-alma-mater-georgetown-prep-is-hiring-director-alumni-relations/.

  35. Mark Landler and Peter Baker, “Trump accuses Democrats of running ‘con game’ against Kavanaugh,” Post-Gazette, September 25, 2018, https://www.post-gazette.com/news/politics-nation/2018/09/25/Donald-Trump-Accuses-Democrats-Running-Con-Game-Against-Brett-Kavanaugh/stories/201809250128.

  36. Jennifer Rubin (@JRubinBlogger), “this makes sense since the alleged behavior was disgusted, juvenile, emotionally stunted,” Twitter, September 24, 2018, 3:23 p.m., https://twitter.com/JRubinBlogger/status/1044351579162378240.

  37. Bre Payton, “Gropemaster Jimmy Kimmel: Let’s Cut Off Brett Kavanaughs ‘Pesky’ Genitals,” The Federalist, September 26, 2018, http://thefederalist.com/2018/09/26/gropemaster-jimmy-kimmel-lets-cut-off-brett-kavanaughs-pesky-genitals/.