Books September 2019
A review of Justice on Trial: The Kavanaugh Confirmation and the Future of the Supreme Court by Mollie Hemingway.
The process is broken. Of this, there can be no doubt, particularly now that we have the definitive account. In Justice on Trial: The Kavanaugh Confirmation and the Future of the Supreme Court, Mollie Hemingway and Carrie Severino have not merely documented the no-holds-barred brawl over Judge (now Justice) Brett Kavanaugh’s nomination to the nation’s highest court.1 They have brought it to life, in all its studied chaos, outrage, anguish, and exhausting triumph.
The question is whether the process is irretrievably broken. On that one, I’m a deeply disheartened yes. That is because the collapse of the judicial confirmation process—which is to say, the Left’s shocking weaponization of that process—is the inexorable fallout of a more basic corruption. It is the distortion of republican governance itself and, more specifically, of the judiciary’s role in it. As the authors put it, “the Court’s ever-bolder activism, which raised the political stakes of each appointment, made the confirmation process increasingly contentious.”
The Kavanaugh debacle was guaranteed to happen because, as the high court became more super-legislator than judicial tribunal, as it morphed from the Framers’ conception of an apolitical branch to the progressive vision of an uber-political powerhouse, battles over its composition have inexorably become gladiatorial combat, not senatorial advice-and-consent.
That has proved catastrophic for our governance, particularly when it comes to the willingness of decent, competent people to subject themselves and their loved ones to what would better be called the defamation process. Readers of Justice on Trial get the benefit of uniquely perceptive insight. Carrie Severino, a Harvard Law School graduate who clerked for Justice Clarence Thomas, runs the Judicial Crisis Network. It was established in 2005 precisely to provide a counterweight to the battalion of leftist groups that, beginning with their outcry over President Reagan’s elevation of the conservative Justice William Rehnquist to chief justice (a dry run for the savaging of Robert Bork’s subsequent nomination), converted what used to be the Senate’s uneventful vetting of Supreme Court nominees—accomplished lawyers, clearly qualified to serve—into propaganda warfare. Severino teams her first-hand knowledge of the battlefield with Mollie Hemingway, a Federalist senior editor and Fox News commentator, renowned for her sharp eye for political trends and gift for relating them thematically. The result is a riveting and at-times blood-boiling story that engages the non-lawyer and lawyer alike.
As the authors relate, Brett Kavanaugh was as eminently qualified as any judicial nominee has ever been. A stellar student at Yale College and Yale Law School, he worked for a year as a law clerk for the justice he would ultimately succeed, Anthony Kennedy, after serving in other prestigious clerkships on the federal appellate courts. He went on to join the estimable legal scholar Kenneth Starr’s independent counsel investigation of Whitewater (which eventually became the Bill Clinton–Monica Lewinsky investigation, leading to the impeachment of the forty-second president). After a stint in a prestigious Washington law firm, Kavanaugh became President George W. Bush’s White House staff secretary, a vital position responsible for the paper flow that enables an administration’s daily governance.
Bush eventually appointed Kavanaugh to the D.C. Circuit Court of Appeals, often described as the nation’s “second highest” court, where eventual Supreme Court justices are commonly groomed. In a dozen years, Kavanaugh wrote an impressive 307 opinions. He developed a reputation as an appellate judge whose work was routinely cited by the high court, and became the federal bench’s most accomplished “feeder” of law clerks to the justices. Oh, and in his copious free time, he taught constitutional law at Harvard.
In other words, Kavanaugh’s elevation to the Supreme Court should have been as uncontroversial as any in history. But it was bitterly controversial because of the fear that Kavanaugh would alter the “ideological balance” of the Court.
And there’s the rub. A court should not have an ideological balance. It is not an elected legislature responsible for formulating policies that address the needs and desires of self-determining constituents. It is a judicial tribunal designed to be insulated from politics, to take as its only compass the law—as it is, not as the judges might wish it to be.
But that was then.
In many ways, it was the Court’s willful forays into kulturkampf politics—imposing outcomes elected progressives could not achieve (and often dared not try)—that made Donald Trump president. As the authors recount, the sudden death of Justice Antonin Scalia, a conservative icon, made the power to choose his replacement a signal issue in the 2016 election—notwithstanding the media–Democrat fury over Republican Senate Majority Leader Mitch McConnell’s refusal to give President Obama’s nominee, D.C. Circuit Judge Merrick Garland, a hearing. (No need to fret over disturbing “ideological balance” when the tilt is left, you see.)
The vacancy was a three-fer for Trump: It highlighted the stakes of electing Hillary Clinton, who was certain to appoint a young progressive firebrand. It enabled Trump to rally skeptical conservatives, particularly by the masterstroke of issuing a list of top-flight potential nominees vetted by the influential Federalist Society. And it provided an opportunity to cultivate the aging Justice Anthony Kennedy, who was contemplating retirement. Within days of being inaugurated, the new president nominated Neil Gorsuch, a former Kennedy clerk (who worked alongside Kavanaugh in that role). When Gorsuch was confirmed with what, for today, was only moderate bruising (forty-five Democrats voting nay despite his top-notch qualifications), Kennedy could step down confident that Trump would name a worthy replacement—Kavanaugh.
Kennedy was the Court’s “swing justice.” Appointed by President Ronald Reagan after Democrats slanderously exploded Bork’s nomination—the dark chapter from which l’affaire Kavanaugh is a horrifying but logical devolution—Kennedy became the classic Washington case: a right-of-center moderate who drifts left, a judicial imperialist who preserves progressive pieties (e.g., judge-made abortion rights) while “growing” into his own walks on the wild side.
Though hardly a fire-breathing right-winger, Kavanaugh was seen as admiring of his mentor, Kennedy, but more conservative, more adherent to originalism—the interpretive framework in which constitutional provisions and other laws are construed in accordance with their text and public meaning at the time of their adoption.
From a policy standpoint, then, Kavanaugh’s nomination was seen as a threat to roll back progressive “advances.” “Abortion will be illegal in twenty states in eighteen months,” the always understated cnn legal analyst Jeffrey Toobin declaimed when Kennedy’s retirement was announced.
The authors relate the fascinating account of Kavanaugh’s selection, made an emotional rollercoaster for his impressive army of supporters (many of them reverential former clerks, mostly women) by the quality of Trump’s potential nominees list. Make no mistake: even this intramural Republican competition is a political scrum, complete with strategic leaking. Kavanaugh’s bid for the nomination was every bit the political campaign, and the President’s penchant for seeking a wide range of advice and multiple interviews with candidates produced highs and lows, in which the team was convinced the contest was lost right up until Trump unveiled Kavanaugh as the nominee.
Concurrently, the Left was so blindly opposed that the opening salvos against Kavanaugh were inadvertently blasted out by email with unfilled spaces where the nominee’s name was to be filled in. It did not matter which candidate was named. It did not matter how stellar the nominee’s credentials were. What mattered were the Manichean politics, us-versus-them, with “them”—Kavanaugh—in the role of Satan incarnate. It had nothing to do with jurisprudence. It was, to the contrary, right out of the hardball playbook of the radical “community organizer” Saul Alinsky: “Pick the target, freeze it, personalize it, and polarize it.”
Kavanaugh is too much the jurisprudent to be fought on the ground that is supposed to matter, his legal acumen. So the Left tried to kill his nomination by perverting the process, as well as overloading it in a variation of the infamous Cloward–Piven strategy—in which the Left’s Jacobins storm the Senate, intimidating members and making proceedings physically difficult to convene.
Most notorious of the Judiciary Committee Democrats’ fraudulent tactics was the ranking member Dianne Feinstein’s concealment of a claim by Christine Blasey Ford, a loopy California psychology professor and anti-Trump partisan. Dr. Ford maintained that when they were in high school, Kavanaugh had attempted to rape her while he and a friend, both drunk, held her captive in a bedroom at a party in suburban Maryland. Ford could not say when the assault happened, what house it happened in, how she had gotten there, or how she got home when she purportedly escaped Kavanaugh’s clutches. Moreover, none of the witnesses she named confirmed the incident—an incident she had gone decades without tying to Kavanaugh and had inconsistently described when first speaking of it in therapy.
Uncorroborated accusations against high-profile nominees are not uncommon, and the Judiciary Committee has a process for handling them confidentially to avoid slandering the nominee or unduly embarrassing the complainant. With Kavanaugh, however, the process was intentionally flouted to publicize the incredible, salacious allegations at the height of the #MeToo moment. Meantime, a Yale classmate claimed to believe Kavanaugh might have exposed himself to her at a drunken party—but no witnesses corroborated her story, and she acknowledged she had been imbibing heavily. And the anti-Trump lawyer Michael Avenatti (who has since been indicted on both coasts for unrelated acts of fraud) announced that he had a client who implicated Kavanaugh in spiking punch bowls in order to facilitate gang rapes. Ford was summoned for testimony in a carnival-like hearing; and, as sexual-assault claims cratered, the Left pivoted to a narrative that the nominee was a hopeless sot.
The account is Kafkaesque, the drama capped by Kavanaugh’s spirited defense of his honor and the steady statesmanship of Senator Susan Collins. Tuning out the Left’s threats against her, the Maine Republican moderate, upon scrutinizing Kavanaugh’s record and his accuser’s spurious allegations, delivers a meticulous speech—and most critically, her desperately needed vote—to save the nomination.
The day is won, but not the struggle. As Hemingway and Severino trenchantly contend, the fatal flaw is the politicization of the judiciary’s role in American life. That makes each nomination a fight to the death, more brazen in the Age of Trump. The Left has become more unapologetically belligerent, and the media more openly aligned with Democrats. Justice Brett Kavanaugh was just the most immediate target. The overarching objective is an in terrorem effect that renders conservatives unwilling to subject themselves to the libelous rigors of confirmation. The goal is nothing less than submission.
1 Justice on Trial: The Kavanaugh Confirmation and the Future of the Supreme Court, by Mollie Hemingway & Carrie Severino; Regnery Publishing, 375 pages, $28.99.
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This article originally appeared in The New Criterion, Volume 38 Number 1, on page 66
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