Judging Brett Kavanaugh
One of the most important events of the first two years of Donald Trump’s presidency was the confirmation of Brett Kavanaugh to the Supreme Court. In recent years, judicial nominations have taken on an outsized importance in American politics. However, the confirmation battle over Kavanaugh’s nomination was truly unique. Kavanaugh was nominated to replace Anthony Kennedy, a Reagan appointee who nonetheless often sided with liberals on a range of issues, including abortion, gay rights, and affirmative action. As such, many thought he would significantly shift the ideological balance of the Supreme Court to the right.
The story of Kavanaugh’s 2018 confirmation battle is nicely chronicled by Mollie Hemingway, senior editor at The Federalist, and Carrie Severino, chief counsel and policy director at the Judicial Crisis Network, in their new book, Justice on Trial.
Hemingway and Severino do a fine job of placing the Kavanaugh nomination in historical context, even going back to the Eisenhower administration to discuss the evolving politics of Supreme Court nominations. They describe the growing importance of Supreme Court rulings on a range of public policy issues and detail the fierce opposition that was faced by nominees Robert Bork and Clarence Thomas. They also discuss the important role that judicial nominations played in the 2016 Republican presidential primaries and the subsequent general election. And having conducted over 100 interviews, they nicely relate the thoughts and feelings of many key players, including the White House staff, Kavanaugh’s team, and the senators.
By going into such detail, the authors provide a great deal of inside information that was not covered by the mainstream media. They point out that Kavanaugh’s wife Ashley prayed that he would not be nominated to the Supreme Court, fearing that the confirmation process would disrupt her family’s lives. They reveal that after Christine Blasey Ford’s testimony, one member of the Senate Judiciary Committee approached Senator Susan Collins and suggested they approach the White House and offer to confirm a different nominee if Kavanaugh’s nomination were to be pulled. Collins declined, however, wanting to hear Kavanaugh’s response first. The authors also reveal in great detail the threats and pressure that Collins and her staff endured, as left-wing agitators urged her to oppose the nominee.
Hemingway and Severino identify a number of unsung heroes. One of them is Rachel Mitchell, a professional forensic interviewer of sex crime victims who questioned Ford during the confirmation hearings. Mitchell’s performance was panned by many pundits, who wanted the Republicans to find someone who would conduct an aggressive cross-examination and point out contradictions in Ford’s story. However, Mitchell’s more diplomatic approach turned out to be savvier than many realized. She was able to establish trust with Ford and subtly show numerous inconsistencies in her testimony. Mitchell’s written report, which calmly described her findings and stated that there was insufficient evidence even to obtain a search warrant, was well received by Republican senators and their staffers.
There was also Leyland Keyser, Christine Blasey Ford’s high school friend. Ford identified Keyser as being present at the 1982 house party when she was allegedly attacked by Kavanaugh. During the confirmation hearings, Keyser was under a great deal of pressure from her former classmates at Holton-Arms school to support Ford. She knew any statement she made would have important implications for Kavanaugh’s confirmation. She took her responsibility seriously, even looking through old high school yearbooks to try to see if she had any recollection of the high court nominee. Even though she was a liberal who opposed Kavanaugh’s nomination, she was consistent in her statements that she did not know him and had no recollection of the party described by Ford.
The book’s only shortcoming is that the authors could have spent more time discussing recent Supreme Court nominations by Democratic presidents. In the 1990s, Bill Clinton’s nominees, Ruth Bader Ginsberg and Stephen Breyer, were quickly confirmed by the Senate with only token Republican opposition. By Barack Obama’s administration, the Supreme Court nominations of Sonia Sotomayor and Elena Kagan were each opposed by more than 30 Republican senators. That said, those legislators never engaged in the kind of personal attacks that took place during the battles over Republican nominees Robert Bork, Clarence Thomas, and Kavanaugh.
However, this is only a minor issue. Overall, Hemingway and Severino have succeeded in writing a very detailed but extremely readable account of Brett Kavanaugh’s confirmation to the Supreme Court. Their research has uncovered interesting information that went unreported by the mainstream media, and political observers who want to relive the unexpected twists and turns of the Kavanaugh nomination hearings will not be disappointed. By providing an account that is detailed, thorough, and readable, they have performed a fine public service.
Michael J. New is a visiting assistant professor at the Busch School of Business at the Catholic University of America and an associate scholar at the Charlotte Lozier Institute. Follow him on Twitter @Michael_J_New.