The Kavanaugh Hearing Revisited

Justice on Trial by Mollie Hemingway and Carrie Severino is a powerful book, whatever a person’s political affiliation. This story reads more like a novel than a fact-filled book.  It explains the historical context of the court nomination system and how political and cultural trends change the shape of the institution over time. Readers can grasp how the nominating process works and get a behind-the-scenes look at what really happened during the confirmation hearings of Brett Kavanaugh for Supreme Court Justice. The authors provide an objective account in talking with American Thinker as they point out how the book reflects a respect for the rule of law and the presumption of innocence.

Mollie Ziegler Hemingway is a senior editor at the Federalist, a Senior Journalism Fellow at Hillsdale College, and a Fox News contributor who always provides clarity and is a voice for common sense. Carrie Severino, a graduate of Harvard Law School, is chief counsel and policy director of the Judicial Crisis Network. In that capacity she has testified before Congress on assorted constitutional issues and briefed senators on judicial nominations. She has also been extensively quoted in the media and regularly appears on diverse networks such as CNN, MSNBC, and Fox News. Both authors are highly regarded political analysts.

They emphasize in the book that from the moment Justice Anthony Kennedy, considered to be a “swing vote” justice, announced his retirement in June 2018, the drama began, even before Brett Kavanaugh was selected. Because the Democrats and media did not want a conservative appointed to replace Kennedy, they planned from the start to oppose whoever President Trump nominated. What resulted was the nasty politics of character assassination that have plagued the confirmation process

The Democrats began their campaign on July 9th, 2018 after President Trump nominated Brett Kavanaugh for a position on the Supreme Court. Even before the confirmation hearing many Democrats including Minority Leader Chuck Schumer and some Democrats on the committee had already announced their intention to vote against Kavanaugh. Thus, began the campaign to destroy Brett Kavanaugh by any means possible, including unverified and nonsensical accusations of sexual assault.

“But a lack of evidence never seemed to keep them from being taken seriously.” Severino noted, “It was disconcerting to see that even when outlandish allegations came out, they were taken seriously by the Democrats and the media.  A man’s reputation was dragged thought the mud publicly with lifelong consequences. There is a need for some kind of evidence to substantiate the accusations.  We talk in the book about an understanding in our society that accusations cannot be acted upon without any evidence.”

Hemingway felt, “There is an inherent contradiction to some people’s reaction to the #MeTooMovement.  There is the good of holding powerful men responsible in the sexual exploitation of women. Yet, not everyone’s allegation must be believed without evidence to support them. It is the standard of believing people without evidence that leads to situations. Remember Swetnick accused people of gang rape of underage women.  All the Democrats responded by saying Kavanaugh should resign.  Senator Diane Feinstein even read that accusation into the congressional record. It made a farce of the confirmation process by not handling all the accusations with confidentiality instead of the media circus.” 

Although no hint of sexual misconduct had ever attached to Kavanaugh in his previous confirmation hearings or FBI background checks, on July 30, 2018, Christine Blasey Ford wrote U.S. Senator Dianne Feinstein a letter, asking for confidentiality, that accused Kavanaugh of having sexually assaulted her in the 1980s. Feinstein held on to it and did not refer the allegation to the FBI until September 14, 2018, after the Judiciary Committee had completed its hearings on Kavanaugh's nomination. Then there were the allegations by Deborah Ramirez, a Yale classmate of his, who recounted how he and others exposed themselves at a party.  Not to be outdone, Michael Avenatti found a witness, Julie Swetnick, with tales of drug-fueled rape gangs led by Kavanaugh and his high-school peers. Justice prevailed even with these unsubstantiated accusations, and Brett Kavanaugh was confirmed on October 6th, 2018 by a 50-48 vote.

As with any story there are protagonists and antagonists.  The protagonists are Brett Kavanaugh’s family, who had to endure these public claims.  Also on the hero’s list is Senator Susan Collins who found the Democratic obstruction outrageous and had to withstand hangers sent to all her offices, obscene and threatening voicemails, being accosted by someone shining a flashlight in her eyes, had a female staffer told by a caller that they hoped she would be raped. Senator Collins had to have a hazardous material team sent to her home after an anthrax/ricin letter scare. Anyone watching her reasons for voting yes on his confirmation would understand how she is evenhanded, thoughtful, and reasonable.

The book quotes Collins as to what should have happened, “This process in my opinion should be about qualifications, about your character, about your approach to judging.”

Hemingway commented directly, “We learned from Senator Collins how a senator does take their role very seriously.  She analyzed the nominee’s judicial record and philosophy intensely. In fact, she hired many additional staff to go through his record, and conducted a thorough interview when he met with her.”

Severino also added, “Senator Collins was a real heroine in this process.  She had courage and a commitment to treating this process fairly from the very first moment.  Yet, she was attacked and bullied.  We learned this is not the way to make progress with Susan Collins. She does not run in the face of intimidation and bullying. In fact, it made her more careful and meticulous in her drawing of conclusions as she evaluated his record and the evidence against him.” 

Senator Lindsey Graham also stepped up to the plate pointing out that he had voted for President Obama’s nominees Elena Kagan and Sonia Sotomayor. He denounced the proceedings as the “most unethical sham since I’ve been in politics… This has been about delay and destruction.  And if we reward this, it is the end of good people wanting to be judges.  It is the end of any concept of the rule of law.”  The antagonists were the Democrats that made a mockery of the confirmation hearings and those women with outrageous claims.

Other protagonists are Ruth Bader Ginsberg, who said in September 2018 that the confirmation hearings used to be bipartisan and pointed out how she was confirmed by a 96 –3 vote and for Anthony Scalia the vote was unanimous. “That’s the way it should be, instead of what it’s become, which is a highly partisan show… I wish I could wave a magic wand and have it go back.” Justice Sotomayor reminded Kavanaugh that “we’re family here,” while Justice Kagan made a point of talking to him during the bar admission ceremony, calling them “a team of nine.”

Having gone through something similar in 1991, Justice Clarence Thomas also provided support to Kavanaugh.  It seems the Democrats did not learn anything then.  Hemingway cited, “By a 2 to 1 margin Americans believed Clarence Thomas immediately after the hearings.  Decades of stories, the press given out awards to themselves, and shaded documentaries, seem like people have forgotten about the actual facts. Today, the Me-Too Movement is damaged by the weaponization for political ends.  It was an unfortunate use of a movement that was bringing accountability to powerful men.  The Democrats also had it backfire in the Senate when Republicans picked up three seats in 2018.  A couple of the “blue Democrats” who lost do feel the Democratic tactics with Kavanaugh are part of what hurt their electoral situation. I also think the media lost more credibility.” 

Unlike most politicians, Donald Trump stood by his nominee. Severino told American Thinker, “His legacy is going to be the excellent justices he put on the court.  He and his counsel Don McGhan did great work on the front end.  They picked justices with clear records.  We talked to a lot of people who said with any other Republican president they probably would not have stood by their nominee given the same circumstances.  There is something special about having Donald Trump at the helm.  Many other politicians would have bowed to the public pressure in the force of such little evidence.”

The authors are hoping that “there is a real appetite for people to understand what happened.  They don’t feel a sense of closure just because Kavanaugh is on the court.  So many things went wrong with this process and there has not been much accountability.  I think Americans are interested in finding out the facts and are still concerned with what happened.  It will definitely carry into 2020.”

So what about the next confirmation hearing?  According to Severino, “Just looking at the trajectory of history I fear that the Democrats will get worse, although it is hard to comprehend how.  We have never seen them dial it back.  It is not about the nominee, but the stakes of the seat being fought over.  I think if there is a situation where Donald Trump will be replacing a liberal justice on the court the Democrats will be even more vicious, if that is even possible.  Hopefully the check on that will be the American people who were fed up with the political games played.”

In reading this book people will get a grasp of the dysfunctional process of confirming a Supreme Court justice. Whether liberal or conservative, after reading this, it will hopefully give people pause about the fairness and politicization of the process. The Kavanaugh confirmation process was a truly embarrassing and disgraceful moment in American history.

The author writes for American Thinker.  She has done book reviews, author interviews, and has written a number of national security, political, and foreign policy articles.

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