Obstructionist Court Confirmations
Review of the Regnery Publishing hardcover edition (July 2019)

I read Justice on Trial as part of my survery of various books in relation to the 2020 American Election. As a Canadian I’ve generally ignored American politics and elections in past years, but the drama of the situation in 2020 has heightened my interest.

Although the Brett Kavanaugh Supreme Court nomination, hearings & confirmation from July 9, 2018 (nomination) to October 6, 2018 (confirmation) predates the 2020 election cycle, it is still provides a deep dive view into the partisan animosity between the political forces in the United States. It is also somewhat of a preview of the Amy Coney Barrett Supreme Court nomination (September 26, 2020 (nomination) to October 26, 2020 (confirmation) which proceeded more smoothly, but with similar protests.

Hemingway and Severino report the ups and downs of the confirmation process in a straightforward factual manner documenting the on the record speeches, statements, questions and answers. There is no question which side comes out looking the worse in this.

This quoted excerpt summarizes the situation the best:

Even Justice Ruth Bader Ginsburg, the most celebrated liberal on the Supreme Court, lamented that Kavanaugh's hearing was a "highly partisan show." " The vote on my confirmation was ninety-six to three, even though I had spent about ten years of my life litigating cases under the auspices of the ACLU," she told an audience at the George Washington University Law School on September 13. She reminded the audience that Antonin Scalia's confirmation was unanimous, adding, "That's the way it should be... I wish I could wave a magic wand and have it go back to the way it was."

( )

This is a good book: one part memoir of the Trump administration via Don McGahn, one part biography of Brett Kavanaugh, one part history of Supreme Court nomination fights, and one part story of the Brett Kavanaugh nomination. When the while Kavanaugh stuff started, I was inclined to believe that something happened between Kavanaugh and Ford (née Blasey), however something that one side had misinterpreted. As time went on, and especially upon reading this book, I believe nothing happened between Kavanaugh and Ford. That the event was either wholly mis-remembered or made up out of whole cloth. You must read the book to see why.

Some important conclusions come about from reading this book:

* The Supreme Court has become too important to our society and government. It was never intended that nine un-elected, life-serving judges decide our laws to the extent that they do. This reliance on the Supremes has made their nominations and confirmations of too much political importance. It's hard to fathom that Antonin Scalia was confirmed unanimously (and that he professorially puffed on a pipe during his confirmation hearings).

* Republicans and Republican nominees are always going to be called racist, anti-woman, and etc. by the leftists in this country. Conservatives must organize to combat these calumnious assertions.

* The media is hopelessly liberal. (I still have colleagues/friends who claim media is corporate and conservative, which is laughable.) This book proves this to be the case. Anything, and I mean anything, in Kavanaugh's biography was misconstrued to be turned into ammunition against him. Any, and I mean any, allegation of wrongdoing was believed and happily bandied about. Meanwhile, any holes in the stories of Kavanaugh's accusers was ignored or elided. And the coverage. Supporters of Ford were interviewed, protests in her favor were lovingly chronicled, senators were hounded by reporters. Activists against Kavanaugh's nomination were praised and depicted as champions of higher ideals. Supporters of Kavanaugh were routinely maligned or, more often, ignored. Let me offer an example, from p. 151:

"Kavanaugh supporters were facing the reality that most of the media were not merely biased against him but were full participants in the opposition. The conservative group Concerned Women for America (CWA) brought its Iowa state director to Grassley's office. CNN's Sunlen Serfaty said there was no time to talk to her, even as the cable outlet pulled protester after protester out of the crowd to interview. Another CNN reporter pretended to be on a phone call when hundreds of female Kavanaugh supporters came to visit Flake. One CBS reporter flat out told CWA that he wasn't there to cover pro-Kavanaugh forces."

Look at that! "One CBS reporter flat out told CWA that he wasn't there to cover pro-Kavanaugh forces." Media bias at its most blatant.

Don McGahn comes off as an important person in the Trump administration during the first two years (almost a hero), especially when it came to the confirmation of Gorsuch and Kavanaugh. (And, it seems, in the whole Russia mess.) His later treatment by Trump is thus sad. Trump is portrayed in the narrative not as a bumbling fool (however mercurial and fickle his passions and loyalties), indeed, he is portrayed as a thoughtful president when it comes to everyday governance, especially in the nomination of judges like Kavanaugh (see, for instance, Trump and the notecard on p. 51).

Finally, on the hypocrisy of Democrats the authors make this great point (pp. 303-304): "The media regularly and shamelessly suggest that Supreme Court cases decided along partisan lines will undermine the legitimacy of the Court—or at least that's the suggestion when the arguments of conservative justices prevail. But the media's repeated attacks on the legitimacy of a court controlled by constitutionalists has almost become a self-fulfilling prophesy. If they continue to criticize the court, should anyone be surprised that the public's faith in the Court's legitimacy is waning?" Liberal progressive leftists love the Court when it makes rulings in their favor. Their judges are never partisan. Their sweeping rulings are never dangerous. Their 5-4 decisions are never ripping the country apart. To liberal progressive leftists, only conservative rulings are bad and divisive. Only conservative judges are partisan hacks. Only conservative rulings are dangerous to liberty. Hypocrisy at it's finest. (Not to say that conservatives are never hypocritical either, they are, but it's not liberals who are talking about Court packing is the Court doesn't rule the way they want it to.) ( )

This is an account of the judicial confirmation proceedings for Brett Kavanaugh in the autumn of 2018. The proceedings fell into two halves. The first half was dedicated to the nominee's early professional life in the second Bush administration, his judicial career in a US Court of Appeals, and his character. The second half was dedicated to accusations of sexual assault, said to have taken place in the early 1980s. The book is largely chronological (with occasional departures), and discusses the two halves separately. There's relatively little discussion of Kavanaugh's jurisprudence in the first part of the book: the focus is very much on the behaviour of the individual actors, with special focus on the Democratic committee members' demands for document production from Kavanaugh's time in government, and their concern that he might be too deferential to the executive (and the current holder). The authors find a great deal of fault in the groups opposing the nomination and the behaviour of the Democratic committee members. In the second part of the book, the number of different actors increases a good deal, and readers who followed the proceedings will learn much that was underreported at the time. There were many acquaintances of the nominee, both supporting and opposed, who made rapid appearances in letters and interviews, but whose opinions and personal troubles are set out here coherently in a single space, where there's opportunity to consider them. The interviews conducted by the authors also brought new information to light. I was not aware, for example, that one of the persons said to be present on the occasion of the assault, Leland Keyser, "lost confidence in [the accuser's] account" and communicated this only to the FBI. (268).

The authors maintain a journalistic veneer throughout, which means that they never pronounce on the truth of the accuser's accusations. They do, however, freely and regularly invite the reader to doubt the accuser's individual statements. As a lawyer I would have preferred more detail and more analysis of the only forensic professional in the room, Rachel Mitchell. She made some striking conclusions, for example that the accuser originally placed the events in the late 1980s, but could never explain what jarred her memory subsequently to place the event years earlier. There must have been other forensic details left out of this book.

But this gives away the nature of the book: a journalistic account of the politics of the confirmation process, not a legal dissection of the merits of the accusation, nor an examination of the nominee's jurisprudence.