Book Review: Justice on Trial (The Kavanaugh Confirmation and the Future of the Supreme Court)

August 27, 2019

Mollie Hemingway and Carrie Severino wrote a powerful book, Justice on Trial: The Kavanaugh Confirmation and the Future of the Supreme Court, detailing the controversial and emotionally draining Senate confirmation of Brett Kavanaugh to the United States Supreme Court.  It was a thorough examination of the contentious hearings and the intense battles revolving around the main protagonists in this drama, Brett Kavanaugh and his accuser, Christine Blasey Ford.

________________________

The book provides information and nuggets of interest that give a different perspective about what Justice Kavanaugh and his family went through during the confirmation.  In it,  a considerable section was devoted to providing background on the contentious senate hearings for the confirmation of Robert Bork and Clarence Thomas during the Reagan and Bush presidencies, respectively.  The authors believed that the failed confirmation of Robert Bork, who was a distinguished justice, was because he fell on the wrong side of the abortion debate. It was used as a lightning rod to kill his chances of serving on the nation's highest court.  Clarence Thomas was a test subject on a new issue that Democrats used to damage his candidacy, namely sexual harassment.  The star of those hearings in addition to Mr. Thomas was Anita Hill, who was front and center after accusing the justice of years of repeated sexual harassment.  Ms. Hemingway and Ms. Severino believed that those two hearings laid the groundwork for the Kavanaugh hearings, with sexual assault the new issue from which to destroy a conservative justice's chance to serve on the Supreme Court.  

Justice on Trial makes the case that the court was never designed to be a prize for the party that controls the White House.  Its purpose is to simply determine if any legislation is Constitutional or not, a designed check on Congressional overreach. The nine members of the court were never meant to have a starring role. The debate between Americans grew from respectful dialogue about various issues into political warfare to determine how presidents and political parties have a lasting legacy, and it centered on the court's justices to rule on subjects that were important to the parties' supporters.  Since both Republicans and Democrats have issues that are dear to their hearts, confirming of judges for the high court has become a zero-sum game.  For Republicans, it is the belief that the Constitution is not a document that needs a lot of edits and re-writes, and should be protected from constant change.  Conservatives believe that Congress should not pass legislation that alters the Constitution.  If there are changes to the document, it needs to be done through amendments passed through 37 states' ratification. Democrats feel that it is a living and breathing article and that it is designed to be altered to match the evolution of American society.

These competing viewpoints along with the breakdown of political discourse has made the Supreme Court the latest and far-reaching battleground.  The failed Bork and successful Thomas confirmations set the stage for the most divisive and contentious hearings, which the book details.  The idea that a potential Supreme Court justice will have to defend his behavior which involves sexual assault and rape accusations is something that the court and Congress have never dealt with before. The authors wondered if these types of gut-wrenching hearings will put off good jurists from serving on the high court. In the age of social media, anyone with a camera can make something go viral. It presented a new layer in political warfare, at a time when calm and deliberative dialogue was sorely needed.

The book's authors provided a detailed initiative by conservative groups, which included the Federalist Society, a passionate group of legal minds who want to preserve the Constitution and seek federal judges who will protect the "originalism" of the Founders's intent of a limited government and protection of free-market principles. Other prominent groups, such as the Judicial Crisis Network, and prominent member Tom Fitton, coordinated the various conservative groups so that they could present a united front and give Brett Kavanaugh support through media platforms. Carrie Severino, one of the book's authors, works for the organization as well and serves as Chief Counsel and Policy Director.  These groups worked to give supporters of Mr. Kavanaugh background of his legal opinions and prepared the judge for his important day in front of the Senate Judiciary Committee.  The first hearing was uneventful, including opening statements and question and answer sessions, except for the protests that delayed Mr. Kavanaugh's testimony.

Justice on Trial described Senator Feinstein's knowledge of a potential witness who made the claims that Brett Kavanaugh sexually assaulted her at a party in high school and once the name leaked, the revelation caused the confirmation battle to go nuclear.  Ms. Severino and Ms. Hemingway wrote about how the witness's identity and claims were withheld and later leaked to supportive liberal newspapers, and how this put Mr. Kavanaugh's family through trying moments, including liberal activists who attempted to smear the judge's reputation and put enormous pressure on the Committee to vote against his ascension to the court. The Democratic effort to destroy Brett Kavanaugh was intense and never seen before. The book gave insight into the war rooms that were run by the conservative groups to give a real-time defense of Mr. Kavanaugh and counter the claims made by the witness, Dr. Christine Blasey Ford, her legal counsel and her allies in the Democratic party.  Justice on Trial talked about President Trump's unwavering support who encouraged Mr. Kavanaugh to fight for his reputation. The judge passionately voiced his support for Dr. Ford, but at the same time, gave a powerful testament of his reputation, the way he had lived his life, and how he will uphold the law as it is written.  

I was impressed with the in-depth analysis of what both sides did to prepare, the battles raging with the president's inner circle, including the White House counsel, Don McGahn, who worked hard to defend Judge Kavanaugh. President Trump was adamant that Mr. Kavanaugh defend his honor to the country and wanted his choice to survive the hearings and played a large role in Republicans presenting a united front to secure Judge Kavanaugh's seat.

Ms. Severino and Ms. Hemingway gave some interesting nuggets as well, such as First Lady Melania Trump's doubt regarding the accusation, Senate Judiciary Chairman Chuck Grassley's attempt to keep his colleagues on a respectful and considerate path, while keeping the committee on track for a vote to the full Senate, along with the sex crimes prosecutor hired by Senate Republicans to question Dr. Ford. This was done so that an all-male Republican side of the committee would not have significant loss of public perception, so America could sympathize even more with Dr. Ford, and force Republicans to end the nomination of Mr. Kavanaugh.

Even though the country is immensely divided on many issues, I strongly urge those who want a different perspective on this fight to purchase or read the book.  Despite both authors' conservative leanings, I was impressed with the detail, the intent to interview many players in this drama and create a narrative that would give the reader what all went into the confirmation.  I was interested in the stories of everyone involved, how the Republicans coordinated with the outside groups who were vested in defending the rule of law, the desire by those who knew Brett Kavanaugh protect a judge's reputation (whether or not you agree with Mr. Kavanaugh's character).   One of the casualties of the emotionally draining process was that it could deter brilliant legal minds from public service, something which is sorely needed today. There is no perfect individual for public service. I encourage the reader to evaluate the book on its merits with an open mind. The result will be to gain a new perspective on what we can do better about how we vet and approve nominees to important positions of our government as defined by the Constitution. Choose a fair standard for all to follow. It is good to gather viewpoints from all sides, and that knowledge will help define a comprehensive understanding of what happened and will prepare us for a better future.

Enjoy the book.