The judicial confirmation process — at least at the Supreme Court level — is broken. When the Senate refused to confirm Barack Obama’s nomination of Merrick Garland in 2016, it was the first time since 1987 that the Senate had rebuffed a high court nominee on partisan grounds. Yet almost all Supreme Court vacancies over that time period emerged when the same party controlled both the White House and the Senate. Before Garland, the last time the Senate considered a cross-party Supreme Court nominee was in 1991, when Clarence Thomas was narrowly confirmed to the court, and partisan lines subsequently hardened. Eleven of 57 Democratic senators voted to confirm Thomas. In contrast, only three Democrats in the Senate voted to confirm President Trump’s first Supreme Court nominee, Neil Gorsuch, in early 2017. And only one, Joe Manchin of West Virginia, voted to confirm Trump’s 2018 nominee, Brett Kavanaugh.
October marked the first anniversary of the Kavanaugh confirmation, which like Thomas’s will be remembered principally for disputed allegations of past sexual misconduct by the nominee. Two new books released by the conservative publishing house Regnery chronicle the contentious Kavanaugh confirmation battle: “Search and Destroy: Inside the Campaign Against Brett Kavanaugh” by Ryan Lovelace and “Justice on Trial: The Kavanaugh Confirmation and the Future of the Supreme Court” by Mollie Hemingway and Carrie Severino.
Each book marshals evidence casting doubt on Kavanaugh’s accusers, but neither book is likely to move the progressives who opposed his nomination. No one can know for certain what happened more than 35 years ago in suburban Washington homes or New Haven dorms — certainly not without any documentary evidence or contemporaneous public complaints, of which there were none. There’s a reason that polling done immediately after the second round of Senate hearings last fall showed that almost 8 percent of Republicans believed Kavanaugh accuser Christine Blasey Ford, while only 5 percent of Democrats believed the Republican nominee.
Still, each of these books is a worthy read for those interested in knowing more about the Kavanaugh confirmation or the judicial nomination process more broadly. “Search and Destroy,” by National Law Journal reporter Lovelace, is the shorter of the two, coming in at 166 pages of text and nearly 70 pages of source notes and appendix material. It’s also the more polemical, but well-written and well-documented; Lovelace’s reporting skills shine through as he quotes letters, testimony and correspondence directly, laying out the bare facts for readers to assess.
In describing the opposition forces arrayed against Kavanaugh (the “campaign” described in the book’s subtitle), Lovelace’s book shines. Anyone reading “Search and Destroy” will understand why presidential aspirants like Sens. Elizabeth Warren (Mass.) and Kamala Harris (Calif.) are so willing to call for Kavanaugh’s impeachment — and even to support efforts to “pack” the Supreme Court by adding new justices beyond the nine that have served by law since 1869.
The leader of the outside opposition to Kavanaugh’s nomination was Brian Fallon, a public relations guru who had served as press secretary for Hillary Clinton’s 2016 presidential campaign. In May 2018, Fallon co-founded Demand Justice, a 501(c)(4) organization committed to raising money from undisclosed donors for court-related electioneering purposes. All but one of the organization’s board members had significant ties to Bill or Hillary Clinton.
By July 2, 2018, before Trump’s nomination of Kavanaugh, the group announced plans to spend at least $5 million opposing the eventual nominee. During the initial hearings, before Ford’s assault allegations came to light, the group arranged for protesters to flood the hearing room in red habits and white bonnets evoking the dystopian female oppression portrayed in the fantasy novel turned television series “The Handmaid’s Tale.” Others overtly disrupted the proceedings.
Beyond affecting public opinion, Lovelace writes, Demand Justice sought to scare Democratic politicians who might have considered deviating from the party line. In the spring of 2019, the group issued report cards on senators’ “response to the far-right capture of our courts,” Lovelace reports. Two presidential hopefuls, Sens. Amy Klobuchar (Minn.) and Michael Bennet (Colo.), received failing grades. The group even bought television ads in New Hampshire against Bennet, who had had the temerity to introduce Gorsuch, a fellow Coloradan, to the Senate when he was nominated to the court. Bennet has no prospect of winning the Democratic presidential nomination, but Fallon’s message was clear.
“Justice on Trial” is longer and more ambitious than the Lovelace book. It was co-written by Hemingway, a journalist, and Severino, a former law clerk for Thomas who runs the Judicial Crisis Network, in some ways the right-wing analogue to Fallon’s Demand Justice. Hemingway and Severino frame the Kavanaugh story in the broader judicial confirmation context. They describe the organized campaign to derail Ronald Reagan’s unsuccessful nomination of Judge Robert Bork to the Supreme Court in 1987, which caught the White House unaware, and the campaign against Severino’s mentor Thomas four years later. In the final chapter, they assess the future of the Supreme Court described in the book’s subtitle — and attempt to chart a course forward.
What makes “Justice on Trial” a must-read for those who follow the politics of the federal judiciary are the details gleaned from the authors’ hundreds of on- and off-the-record interviews with participants in the confirmation drama. The book describes how candidate Trump made the unprecedented decision to suggest prospective Supreme Court nominees in a primary-season debate, as well as to release a follow-up list of potential justices. (Interestingly, Kavanaugh was among the three initial names, along with appellate judges Diane Sykes and William Pryor, suggested to Trump by campaign adviser and future White House counsel Don McGahn. The campaign ultimately decided not to put forward Kavanaugh’s name before the election, owing to rulings that some conservatives might have deemed suspect and his ties to the D.C. establishment, including the Bush family.) And it outlines the process and internal debates that ultimately led the Trump administration to nominate first Gorsuch and later Kavanaugh to the court.
“Justice on Trial” puts readers in the room where the action took place, whether that was the Senate antechamber where Democratic Sen. Chris Coons and Republican Sen. Jeff Flake negotiated the confirmation process in real time, or the Kavanaugh home, where the soon-to-be-nominee gathered his family for a secret exit to the White House for the televised announcement. The book even chronicles Kavanaugh’s courtship of his wife, Ashley, during their days in the Bush White House and discusses the Bible verses and prayers that she relied on during the confirmation ordeal.
If “Justice on Trial” has a failing, it is this: It never really charts a clear path out of the judicial confirmation mess. But that may be because there isn’t one. Nor does “Search and Destroy” wrestle with the question. Hemingway and Severino suggest a return to a more modest judiciary that leaves political disputes to the elected branches of government. It’s a view with which I am broadly sympathetic. Yet most observers on the right, myself included, are uninclined to eschew judicial review altogether: When the Constitution expressly makes preservations of liberty, or places structural limits on the legislature and executive, there are good reasons for judges to police the elected branches’ actions. Nor is it reasonable to expect the left to abandon the courts as a vehicle for achieving core political goals.
The late justice Robert Jackson quipped that he and his fellow justices were “infallible only because we are final.” That the Supreme Court gets the last word inevitably means high-stakes high-court politics, in a world where the federal government has grown far beyond the limits prescribed in the original Constitution. Those seeking clarity would be well-advised to peruse these new books on the latest judicial confirmation controversy.
This piece originally appeared at The Washington Post
James R. Copland is a senior fellow and director of legal policy at the Manhattan Institute. Follow him on Twitter here.
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