The following is an exclusive excerpt from Justice on Trial: The Kavanaugh Confirmation and the Future of the Supreme Court (Regnery Publishing, July 9, 2019) by Mollie Hemingway and Carrie Severino.
This book is based on interviews of more than one hundred people, including the president of the United States, several Supreme Court justices, high-ranking White House and Department of Justice officials, and dozens of senators. The authors also spoke with leaders of advocacy groups and legal experts, with family, friends, and former law clerks of Justice Kavanaugh, and with many others involved in the effort to confirm a successor to Justice Anthony Kennedy.
Many things went horribly wrong on Brett Kavanaugh’s road to the Supreme Court. But more importantly, many things went right. It was no accident that, when confronted with the most aggressive, coordinated, and well-funded attack on a judicial nominee in this nation’s history, the effort to confirm Kavanaugh was successful.
There were at least five reasons for this success.
First, the nation had a president who supported the conservative judicial movement. His campaign had assembled a coalition that included that movement, and he embraced the cause of nominating principled originalist judges.
Winning an election, however, is not enough. The appointment of a Supreme Court justice is the work of key members of the president’s senior staff, who must make the nomination and confirmation a priority. Once in office, President Trump put in place a highly qualified team, headed by Don McGahn, who enabled him to fulfill his campaign promise of putting reliable originalists on the Court. And Trump stood by the project when it became politically imperiled.
Second, Republicans controlled the Senate. In today’s polarized environment, the likelihood of a Democrat’s voting for any Republican nominee, however qualified, is minuscule (although there are still plenty of Republicans who will compliantly vote for a Democratic nominee). Controlling the Senate is therefore essential for appointing a conservative to the Court.
Third, an array of organizations made the confirmation of originalist judges a priority. That infrastructure made the Gorsuch and Kavanaugh victories possible. And that infrastructure was the product of thirty-five years of work by the conservative legal movement to establish itself as a potent and well-organized force for changing the judiciary and the legal culture. It nurtured the lawyers who would staff the White House and the Department of Justice, who would be elected to the Senate and become key aides, and who would become judges themselves. And it carried out the slow but crucial task of educating the public on the importance of constitutional principles and the judiciary’s role in upholding them. This relentless work eventually produced the public demand for a president who would make the judiciary a priority.
Fourth, new media outlets emerged to challenge the liberalism that had reigned in the press for decades. These publications, web magazines, and podcasts refused to let liberal media control the narrative. They confidently reported the facts and showed courage in the face of overwhelming pressure.
Finally, none of these achievements would have been possible without conservative Americans themselves. They rallied behind candidates, provided their needed campaign funds, and organized and funded advocacy groups. Americans’ instinctual understanding of the value of the rule of law played an important role.
Mollie Hemingway and Carrie Severino are the co-authors of Justice on Trial. Carrie Severino is the chief counsel and policy director of the Judicial Crisis Network. Mollie Hemingway is a senior editor at The Federalist.