Books: "Justice on Trial" On The Fight Over Kavanaugh's Nomination To Court

Justice on Trial: The Kavanaugh Confirmation and the Future of the Supreme Court
By Mollie Hemingway and Carrie Severino
Regnery Publishing; hardcover; $28.99

The retirement of Supreme Court Justice Anthony Kennedy last summer sparked a political firestorm as President Donald Trump would now have to choose a nominee to replace the swing vote on the Court.


This was the second time Trump would have a Supreme Court pick, and he chose to nominate Brett Kavanaugh, who was a United States Circuit Court Judge of the U.S. Court of Appeals for the District of Columbia Circuit.

The confirmation process that ensued over the next few months would devolve into what the judge would call a "national disgrace" and a "circus" after being put through the politics of personal destruction.

The new book Justice on Trial, byThe Federalist senior editor Mollie Hemingway and Judicial Crisis Network senior counsel Carrie Severino, is the definitive work on what turned into one of the most heated battles of our time.

Based on  interviews with more than 100 people, including the President, several Supreme Court justices, high-ranking White House and Justice Department officials, and dozens of senators, they reveal what really happened and explore what the bitterly divisive hearings mean for the future of the Court and the battle for the soul of America.

The judicial confirmation process, which has been on the point of breakdown for thirty years, going back to when Robert Bork's nomination by President Ronald Reagan was derailed, proved dysfunctional when it came to Kavanaugh.

Nasty politics and unverified sexual assault accusations, including from Christine Blasey Ford, became weapons in the Democrats' campaign to derail the nomination.

On September 27, 2018, the battle culminated in the hearings in which Ford testified about what happened to her, and then  Kavanaugh followed with an impassioned defense that saved his nomination.`

Hemingway and Severino write, "Kavanaugh entered the hearing room and sat down. He wore a dark suit and a blue tie. His brow was furrowed as he adjusted his microphone and papers. (His wife) Ashley sat behind him next to her friend, Laura Kaplan.
"He began by noting that he had denied the allegations against him 'immediately, categorically, and unequivocally.' He quoted from the witness statements saying that they had no recollection of anything like the episode Ford had described. He reminded the committee he'd asked for an immediate hearing to clear his name, demanding a hearing the next day. Their ten-day delay had allowed his family and his name to be 'totally and permanently destroyed by vicious and false additional accusations.'
"Kavanaugh said he had welcomed an investigation into the charges and had cooperated fully, knowing that any investigation would clear him. He reminded the committee of the myriad witnesses who all testified to his character.
"'This confirmation process has become a national disgrace,' he said. 'The Constitution gives the Senate an important role in the confirmation process, but you have replaced 'advice and consent' with 'search and destroy.'' He reminded the senators that the moment his nomination was announced, left-wing activists had launched a frenzied search to 'come up with something, anything,' to block his confirmation. He threw statements of Democratic senators back at them, reminding everyone that the minority leader, Chuch Schumer, had said he would oppose him with everything he had. He reminded the Democrats on the Senate Judiciary Committee that one of them - it was Senator Booker - had publicly referred to him as evil. 'Evil. Think about that word. It's said that those who supported me were, quote, complicit in evil.' he continued, driving his point home. He rehearsed a few more of the reckless and extreme statements by Democratic senators and political leaders.
"'I understand the passions of the moment,' he said, but he reminded them that people took their words seriously, issuing vile threats against his wife and friends. 'You sowed the wind. For decades to come, I fear the whole country will reap the whirlwind.'
"The behavior of the Democrats on the Judiciary Committee was an 'embarrassment' when it was still at the level of a 'good old-fashioned attempt at Borking.' But when it began to look like he would be confirmed, 'a new tactic was needed.' He noted that a Democratic member and her staff had kept Ford's allegation a secret for weeks, waiting to unveil it when it was needed and making it public against Ford's wishes...
"Kavanaugh was fighting not only to vindicate his judicial philosophy and the reasoning of his opinions, but also to vindicate his reputation as a man. He had endured the indignity of having to respond to the most sensitive and embarrassing questions he could imagine. He was not going to let his opponents destroy his life.
"After (Senator Dick) Durbin's questioning, Senator Lindsay Graham asked for the floor. No one was expecting what followed. As he began to speak, Graham's tone was matter-of-fact. 'Are you aware,' he asked the nominee, 'that at 9:23 the night of July the ninth, the day you were nominated to the Supreme Court by President Trump, Senator Schumer said - twenty-three minutes after your nomination - 'I will oppose Judge Kavanaugh's nomination with everything you have. I hope a bipartisan majority will do the same. The stakes are simply too high for anything less'? Well, if you weren't aware of it, you are now.
"'Did you meet with Senator Diane Feinstein on August 20?'
"'I did meet with Senator Feinstein,' Kavanaugh answered.
"'Did you know her staff had already recommended a lawyer to Dr. Ford?' Here the senator shifted in his chair, hunched his shoulders slightly, and pursed his lips, the first indication of his rising anger.
"'I did not know that.'
"Did you know that her and her staff had this allegation for over twenty days?'
"'I did not know that at the time.'
"And then, turning to the Democrats arrayed to his left, Graham snarled, 'If you wanted an FBI investigation, you could have come to us. What you want is to destroy this guy's life' - pointing at Kavanaugh - 'hold this seat open and hope you win in 2020. You've said that!'
"For the next three and a half minutes, Lindsey Graham was a volcano of indignation. With unconcealed contempt, he declared, 'If you really wanted to know the truth, you sure as hell wouldn't have done what you've done to this guy,' denouncing the proceedings as the 'most unethical sham since I've been in politics.' He reminded everyone that he had voted to confirm Democratic nominees Sotomayor and Kagan.
"Pointing out that Christine Blasey Ford was as much a victim of the Democrats' machinations as Kavanaugh was, Graham exposed their true aim with stunning clarity: 'Boy, y'all want power. God, I hope you never get it.'
"To Kavanaugh he said, 'Would you say you've gone through hell?'
"'I've been through hell and then some,' Kavanaugh replied.
"'This is not a job interview. This is hell,' Graham said. He ended with a warning to his fellow Republicans that if they voted against Kavanaugh, they would be 'legitimizing the most despicable thing I have ever seen in my time in politics.'
"The moment was electric. Kavanaugh was overwhelmed and grateful. Senator Graham had changed the entire dynamic of the day. It was powerful because he was saying what everybody outside of newsrooms and other liberal institutions was thinking but couldn't say. The catharsis was palpable."
Kavanaugh's nomination went through the Senate Judiciary Committee the next day, and after an FBI investigation that took place over the following week, he was confirmed by the entire Senate on October 6.

While Justice on Trial does an amazing job of focusing on the bruising battle over Kavanaugh's nomination, Hemingway and Severino look at the larger issues at play when a nominee has to endure a fight like that.

"Make no mistake, the smear campaigns against judicial nominees are themselves an attack on the Court's legitimacy," write Hemingway and Severino. "Even if they don't prevent a justice's appointment, they are a tool to delegitimize him after he is on the Court. A case in point is Justice Clarence Thomas. At the time of his confirmation, polling showed a substantial majority of Americans - black and white, male and female - believed him over Anita Hill. But the campaign against Justice Thomas never stopped. For a quarter-century, the refrain in the media and in legal academia has been that Clarence Thomas's guilt is simply a fact of history...
"And for all the hysteria, there is still no indication that anyone on the left is walking away from the Kavanaugh confirmation chastened by the electoral consequences or determined to prevent more damage to the credibility of the judiciary. Although Justice Kavanaugh's investiture was a celebratory moment, there was an ominous note. When the justices took their seats behind the bench, one was missing. Ruth Bader Ginsburg, at eighty-six the Court's oldest member, was in the hospital. She had fallen the day before, breaking three ribs. Her doctors then discovered a cancerous mass in her lung, her third bout with cancer. She has beaten cancer twice, and doctors say the latest treatment was a success. She has no intention of stepping down. But sooner or later there will be another vacancy on the Court, whether it is her seat or another justice's.
"It's hard to imagine how a confirmation battle could compete with Kavanaugh's for ugliness. But if the next appointment portends a major ideological shift, it could be worse. When President Reagan had a chance to replace Louis Powell, a swing vote, with (Robert) Bork, Democrats went to the mat to oppose him. When Thurgood Marshall, one of the Court's most liberal members, stood to be replaced by Clarence Thomas, the battle got even uglier. And trading the swing vote Sandra Day O'Connor for (Samuel) Alito triggered an attempted filibuster,
"As ugly as Kavanaugh's confirmation battle became, he is unlikely to shift the Court dramatically. Except on abortion and homosexuality, Justice Kennedy usually voted with the conservatives. If Justice Ginsburg were to retire while Trump was in the White House, the resulting appointment would probably be like the Thomas-for-Marshall trade. Compared with what might follow, the Kavanaugh confirmation might look like the good old days of civility."