Appearing in Australian Spectator, 5 October 2019
Justice on Trial: The Kavanaugh Confirmation and the Future of the Supreme Court
By Mollie Hemingway and Carrie Severino
Regnery Publishing, A$57, 376 pages
How did it come to this? When did the constitutional right of the US Senate to “advise and consent” on Supreme Court nominees become a mission to ‘search and destroy’ individuals by any means? Hemingway and Severino, both connected to conservative legal groups, provide a carefully researched and highly detailed account of the battle over the confirmation of Brett Kavanaugh. After reading it one cannot help but be amazed at how the liberal left, which once held itself out as the exemplar of due process and reasoned argument, has become mired in its own self-righteousness and venom.
The Kavanaugh nomination was particularly important to the left because it might lead to the reversal of the Roe vs Wade decision, as it involved the replacement of a liberal judge with a conservative one. To the activist warriors the protection of Roe vs Wade is an end that justifies any means. When added to their hatred of Donald Trump, the result is a lack of any moral compass and the loss of any sense of legal procedure.
Senior Democrats like Dianne Feinstein announced minutes after his nomination was made public that she would vote against anyone put forward by Trump regardless of their qualifications. Most of the other Senate Democrats said the same, making one wonder about the point of the whole business. But this left them a few votes short. The strategy was to attack Kavanaugh’s personality and background to swing some moderate Republicans over.
Kavanaugh had been warned by the White House that it was going to be tough, and it says much about the man’s character that he never considered not accepting the nomination. Right from the start, there were claims that he had assaulted or raped women, usually pushed along by the Democrats on Judiciary Committee. The claims quickly collapsed when the FBI investigated; the claimants often seemed astonished that there was any investigation at all. Activist lawyer Michael Avennatti brought forward a woman called Julie Swetnick who claimed that Kavanaugh, when at university, had been part of a plot to drug and gang-rape women. It fell apart when she admitted that she had no solid evidence for any such thing, and had a long history of making spurious charges.
The White House was thinking that the confirmation was going to proceed according to plan when Feinstein introduced another claimant. It was all secretive; Feinstein willingly broke the committee rules by withholding details until the last moment. When the claimant, Christine Blasey Ford, eventually appeared before the committee she said that Kavanaugh had sexually assaulted her at a party when they were in high school, leaving her permanently traumatised. Hemingway and Severino note that her social media presence had been scrubbed to remove any evidence of her militant anti-Trump views.
Her account was impressive, as a media performance, but cracks soon began to appear. She was fuzzy on when it occurred: she first said the late 1980s, but that did not work because by then Kavanaugh had moved away. She eventually settled on 1982, which would have made her 15. She could not say where the party was, how she got there, or how she got home. The real killer to her story, however, was that the friends she said with her at the time had no recollection of either the party or the assault.
Neither did her account of trauma ring true. She said she was afraid to fly, but in fact she often flew to other countries to surf.
None of this mattered to the anti-Kavanaugh forces, who said quite blatantly that Kavanaugh was guilty until he could prove himself innocent (although it is unlikely that any amount of proof would have been enough). Kavanaugh, for his part, could not remember ever meeting Ford, although he admitted that, yes, in high school and university he sometimes attended parties and he sometimes drank beer.
Depositions from women in Kavanaugh’s life saying that he had always treated them with respect were ignored. A common pattern was that activist women would say that they had been assaulted, and therefore Kavanaugh should be held responsible for all assaults. A confirmation vote for Kavanaugh, they shrieked, was a vote in support of rape and misogyny. Even the fact that Kavanaugh coached a junior basketball team was raised as evidence of likely paedophilia.
When Kavanaugh spoke before the committee, he avoided attacking Ford personally. He said that she had probably been assaulted and had mistakenly conflated the experience with him. It was a generous view, given what he was being accused of. Nevertheless, he carefully debunked her allegations as well as all the others against him, and emphasised that his judicial philosophy sat squarely within the mainstream.
It ended where it began, with a confirmation vote largely along party lines (one senator of each side switched). The left claimed victory, saying that any vote Kavanaugh made was now fatally tainted. Their media allies agreed, but when he was sworn in several Supreme Court judges, including liberals Ginsburg and Kagan, made a point of attending.
The left also said that any other potential conservative nominees would now be afraid to accept a nomination but Hemingway and Severino are sceptical. Judges tend to be tough characters, they say, and a Supreme Court position is the professional pinnacle. Nevertheless, the viciousness of the attacks on Kavanaugh indicate the depth of the divides in US society, as well as the issue of who can be trusted to communicate the truth. Certainly, the mainstream media came out of the whole affair with their collective reputation badly diminished.
Justice on Trial is not a light read, with a large cast and overlapping timelines. But it should be read by anyone with an interest in US politics. It is not a happy story but it is an important one.