The James Wilson Foundation on Natural Rights and the American Founding

“Justice on Trial: The Kavanaugh Confirmation and the Future of the Supreme Court” An Interview with Mollie Hemingway and Carrie Severino

In July 2019, JWI’s Deputy Director Garrett Snedeker and Intern Maura Bradley shared a discussion with Mollie Hemingway and Carrie Severino, the authors of the book Justice on Trial: The Kavanaugh Confirmation and the Future of the Supreme Court (Regnery Publishing, 2019). Hemingway is senior editor at the online magazine The Federalist where she covered the Kavanaugh confirmation in detail and a contributor for Fox News. Carrie Severino is chief counsel and policy director of the Judicial Crisis Network. JCN was one of the main organizations supporting the confirmation of then Judge Kavanaugh to the Supreme Court. Among her many professional accomplishments, she clerked for Justice Clarence Thomas of the U.S. Supreme Court.

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A transcribed version of the interview, edited for clarity and length:

Garrett: Hello and welcome to the James Wilson podcast. I’m Garrett Snedeker. For a special edition of the podcast, we will be speaking with Mollie Hemingway and Carrie Severino, authors of the, at the time of this recording, number one, Amazon best seller Justice on Trial: The Kavanaugh Confirmation and the Future of the Supreme Court from Regnery Publishing. Mollie Hemingway is senior editor at the online magazine The Federalist where she covered the Kavanaugh confirmation in detail and a contributor for Fox News. Carrie Severino is chief counsel and policy director of the Judicial Crisis Network. JCN was one of the main organizations supporting the confirmation of then Judge Kavanaugh to the Supreme Court. Among her many professional accomplishments, she clerked for Justice Clarence Thomas of the U.S. Supreme Court. More than anything else, I’m proud to call both of them friends. Joining us on the podcast is Maura Bradley, one of our interns at the James Wilson Institute this summer. Maura, why don’t you begin?

Maura: Mollie and Carrie, What compelled the two of you to get together to tell this story?

Mollie: Carrie and I had worked together during the Kavanaugh confirmation just because I was covering it and I would talk to her and ask her questions. She was incredibly knowledgeable. She was working on the confirmation process itself. We’d actually known each other just as journalists, knowing people who are working in the space. We knew that this was a really interesting story because of what we had learned while covering it or while working on it. We also knew that it was important to get the facts down properly before there was a narrative reconstruction of what had happened. So we knew it was a good story. We knew that the story was also important for understanding the history and context of Supreme Court nomination battles and we just decided to go with it. And I’m really glad we did.

Carrie: Yeah, I think it was also a great opportunity because we knew that we had access to a lot of people who, because of just our relationships already, would be able to tell the fullest story possible. And that turned out to be just an amazing gift. We talked to more than a hundred different people for hundreds of hours of interviews to get this story down. It went from the President, the Vice President, people that were working in the administration, multiple Supreme Court justices, many senators and their staff, people who knew Kavanaugh, going all the way back to high school and we’re close to the family, people who knew Blasey Ford in the same capacity, who could really comment on the things. So that was a really great opportunity here and it was fun for me to effectively learn from Mollie, who’s an amazing journalist, how to go about that interview process and really constructing all of the details that went into this story.

Maura: What ultimately motivated Trump to choose Brett Kavanaugh over other qualified candidates such as Tom Hardiman, Amy Coney Barrett and Ray Kethledge? For example, if Trump had nominated a woman like Amy Coney Barrett, would she have been viewed as less of a threat to women more broadly in the eyes of Democrats, particularly in this #MeToo era? Or is that too simplistic?

Carrie: Yeah. There were people that we talked to in this process who said, “Hey, I say you should pick a woman because things could get crazy here.” I guess my point to it is, in a situation where you have an important seat like the Kennedy seat up for grabs, I don’t think you can say, “Oh, appointing a woman would have solved this problem.” It may not have been an allegation of sexual misconduct. I think it would have been something else. And if you look at, for example, the very intense confirmation to the appellate court of Amy Coney Barrett where really I would say the bar was set much lower than it was before in terms of the religious attacks on her faith. And that was unfortunate to see that process dragged down even farther with Senator Feinstein and her famous words, “The dogma lives loudly within you.” I think, again, if it had been a woman that doesn’t insulate you from attacks. In some ways it seems to almost affect the Left more because I think having an articulate conservative woman is very threatening to them [and it] threatened some of their identity politics lines. And I think that’s something that they would have absolutely gone to the mat on as well.

Mollie: We went into detail into the vetting of nominees or people to be placed on that original list that Donald Trump comes up with during the primary of the 2016 election, [which] then gets updated during the general election, then it gets refreshed after he has begun his administration. And it’s really interesting how much work went into this and how early particularly when you compare it to previous nomination decision processes where people had trouble coming up with nominees or had trouble figuring out which one to go with. This campaign, and then later this administration, did some pretty serious vetting early on so that by the time Kennedy retires, they actually have a really good list of strong candidates who could be in there. You were asking how Kavanaugh was chosen. And one of the things I thought was interesting that we found out in our reporting was that Donald Trump actually first talked about Brett Kavanaugh with his future White House Council, Don McGahn, on the day Scalia dies. And so, he’s discussed early. He’s discussed often. He sort of always the front runner by the time Kennedy does retire. Other people had a shot, but he was always sort of the one to beat. I think he does match certain things that Donald Trump likes in terms of his career path. He looks the part. He has the strong originalist background that they were looking for. But more than anything I think it is also worth noting the Senate was an incredibly narrow hold by the Republicans. And it had been communicated to the White House that they were looking for someone more; that some wavering senators were not sure that they could get through one of the more stalwart type nominees. And that was part of part of what we talk about in Justice on Trial.

Garrett: Carrie, how much of Trump’s victory in 2016 in both the primary and general elections can be credited to his specific commitment in the form of the list of constitutionalist judges to fill Justice Scalia’s open seat?

Carrie: Yeah, that’s another story we tell early on in Justice on Trial. I think [with] such a close election like that, there probably are a lot of “but for” causes for him winning the election. But I think absolutely the courts was one [cause] and we tell the story of how that list came about and then how that really changed the dynamics in an election that that up until then my organization, JCN, was trying to explain to people why the court is something they should be thinking about. And before Justice Scalia passed away, a lot of people and certainly the journalists who are covering kind of brushed it off as no one really votes on that. I actually think a lot of people do find the courts a very compelling reason. And I think suddenly when you had the vacancy in front of us, everyone realized, “Oh yeah, this is not just a speculation. He’ll probably get multiple Supreme Court seats.” We know we’ve got one already to fill. And so I think for a lot of people, and particularly with the dynamic of Trump, where there were people who were on the fence, who normally would be Republican voters who said, “We aren’t comfortable with Trump.” [They] didn’t know if they could trust him on things. Having an explicit list, not just what traditionally Republican nominees had done and saying, “Oh, well I’ll nominate someone who supports the Constitution. I will nominate someone in the mold of Justice Scalia and Thomas.” That list showed them not only that, he was really serious about that, but also that he had a team around him. Again, the White House, Don McGahn, the people around him, and that he was willing to go with someone who really actually embodied those principles. So when you have a list of ultimately two dozen people who each one of whom has that record of originalism, it starts to look like, “Oh, they’re serious about this. This isn’t just a talking point. This isn’t actual policy that we’re going to be put in place.” And of course once he came into office, he started to deliver on that, not just with Justice Gorsuch, but also with a string of appellate nominees that has just been outstanding and have broken records in terms of both, I think quality and quantity.

Garrett: Sure. Do you think we’ll ever go back to a “list-less” candidate? I know the Democrats are already coming to terms with whether or not their leading nominee will have to put out a list. But on the Republican side, at least, do you think we’ll ever have a list-less candidate?

Carrie: For my part, I hope this is something that’s here to stay. It’s one of the most significant and impactful decisions any president has, that this is someone who will sit on the court in all likelihood, many times longer than the president who appointed him or her. And so it has a real generational impact on the court and on our law. So if all the things that we should be discussing in depth about what a president would do, it’s who they would put on on the Supreme Court and on the, on the other courts. So it’s been interesting to see the Democrats come around to the idea that they need to start looking at who they would put on the court and collecting names beforehand. But of course they still have decided they want to keep their lists secret. So that’s something that I’m encouraging them to come out and say, cause I think it’s something we ought to be able to debate during this nomination.

Maura: So it seemed that much of the initial anger from the Democrats with Kavanaugh’s nomination dealt more with President Trump himself than with Kavanaugh’s qualifications. In fact, it was clear that it didn’t matter at all who Trump nominated. Look no further than the women’s March gaffe in which they failed to actually name the nominee, leaving a space marked “XX” in their official opposition statement. Knowing this, do you believe one of the reasons Kavanaugh was so vilified throughout the confirmation process involves the Democrats ongoing anger with Donald Trump? If so, how has this manifest in the first round of hearings for then Judge Kavanaugh?

Mollie: Yeah. There’s no question that anger at Donald Trump motivated quite a bit of the early opposition to Kavanaugh. Remember that it was even before he was named that certain people came out against whoever would be nominated by Donald Trump. You had senators asked to say that they will vote against it. Senator Susan Collins was targeted beginning in June of last year. Judge Kavanaugh wasn’t nominated until July 9th, but beginning in June, she starts getting threatening packages sent to her offices in Maine of hangers. The idea was to threaten her about abortion. So this began early within minutes of him being named, they have this protest on steps of the Supreme Court. Obviously, this is not about Brett Kavanaugh in particular and you can see that because of how they kind of flailed early on with what their messaging would be, it almost became something of a joke. You had ProPublica asking people to go through their photos of sporting events to see if there were any showing Brett Kavanaugh at sporting events. You had The Washington Post big expo say about how he puts season tickets on his credit card for him and his friends resulting in a debt that had to be paid off. It became a joke where people came up with fake Brett Kavanaugh scandals, like he can neglected to turn off his brights winning oncoming car came at him; things like that, that weren’t really problems. And then that first set of hearings of course were a complete and total circus. People forget because they remember how horrific it got later on with the allegations of sexual assault that they don’t remember that it was horrible beginning in that first round of hearings where the chairman of the Senate Judiciary Committee, Chuck Grassley, couldn’t even make it through his 10 minute opening remarks for an hour because he was so interrupted with protestors who had been flown in and were taught how to get arrested and had their bail money taken care of by these activist groups on the left. So I think though Carrie pointed to this earlier. This isn’t really about Donald Trump at this point. This is just about the Supreme Court and how the more political it gets, the more the seat becomes valuable for progressives who seek to sort of force democratic change through the courts. And so it wouldn’t have mattered if it were Marco Rubio nominating him or Donald Trump. You would have seen probably the same reaction.

Garrett: Yeah. I couldn’t get over, what–Mollie–you were referencing, the actions of the protestors during the first round of hearings. But it was the Senate Democrats themselves who were often the prime generators of these delays. They were, I mean, they were going to such outrageous lengths to de-normalize the Kavanaugh nomination, even though Kavanaugh would have been the presumptive nominee of probably almost every single one of the Republicans who was up in the primary in 2016. He would have been on all of their internal lists, if not public lists.

Carrie: Yeah. I think that it was clear that it was a conscious campaign. And the Democrats it turns out had been on a conference call the day before those first hearings just talking about what they could do to make this more of an event and to get more people interested in this confirmation process. This wasn’t something where the reaction is a groundswell. This was a carefully coordinated campaign and, as Mollie pointed out, the different protesters were flown in. One of my favorite lines was [from] one of the organizers said to them, “Oh, this isn’t chaos. This is scripted.” I think, “Yes, exactly.” This is a scripted offensive against in a nominee.

Garrett: Mollie, the term “fake news” clearly has become a part of our vernacular over the past few years. What were some of the most appalling pieces of “fake news” you encountered in your research for this book? What was it about Kavanaugh’s confirmation that made journalistic standards go so far out the window? And in what ways would you say the media is to blame for the treatment of Kavanaugh throughout this ordeal?

Molle: Yeah, this is not been a good era for media coverage if you’re interested in facts and an aim toward objectivity or just truth-telling in general. And so this Kavanaugh confirmation hit at kind of a low point for the media. So it was things big and small. It began with just this attempt to find anything to go against them or to go after him. And then that seemed to color all the coverage once things really did break down. We do go through quite a few examples in Justice on Trial of media malpractice. But one thing that kind of struck us I think would be learning how it affected people to see how the media were behaving. When Christine Blasey Ford has her story about an assault, that story actually changes a bit over time, including the number of people who are involved and present and whether they were male or female and whatnot. And the Washington Post actually covered up that change in the story line, hiding for instance that the latest version of events had a female present at the scene of the party. Even though we know that they knew that there was a female, that her allegation was that a female was there. That female was Leland Keyser, a lifelong friend of Christine Blasey Ford, a liberal Democrat who did not want Judge Kavanaugh placed on the Supreme Court and each of the four witnesses in her latest version of events says that they don’t remember any such party or anything as, as described by Christine Blasey Ford. But when Leland Keyser is one of those four who says that that’s actually huge news because she is a friend of Blasey Ford’s and she is a liberal Democrat and she is the one person who could help out with this. The news comes out I think late on a Saturday night, it might’ve been a Friday night. And when it comes out, the people close to Kavanaugh, they realize this is a huge deal. This is massive. The one friend even won’t back her up. And instead of it being massive news, it’s barely mentioned by the media and it’s not mentioned as the important thing that it is. And then there are other things like how NBC News knew that the supposed corroborator of the Julie Swetnick allegations put forth by Michael Avenatti was denying Michael Avenatti’s claims about what she would say. NBC News knew this. They sat on this from prior to the confirmation vote until several weeks later. Or you look at things like just Jane Mayer and Ronan Farrow at the New Yorker put forth this story that is so ridiculous about a woman who after eight days with her attorneys, her Democratic attorneys, I think it was eight, maybe it was six days, comes up with an idea that maybe Brett Kavanaugh was present in a room or something might’ve happened, but she can’t quite remember because she was blackout drunk and she doesn’t have specifics and they run an actual story, like a story that never should have even made it probably, ends up getting published in the New Yorker and taken seriously, even though there’s no evidence in support of it. That was a story by the way, that even The New York Times, which is, has its own badges of shame to wear said that they couldn’t find any corroboration. They’ve interviewed dozens of people who couldn’t back up that claim. So just things big, small, and in between, it was just like a tsunami of bad coverage. It was very difficult for sensible or fact based journalism to come through.

Garrett: Yeah, it just struck me that the confluence of the media’s success in bringing to light serial abusers such as Harvey Weinstein and Matt Lauer collided with a high profile event in and of itself. And we were not looking any longer at a Supreme Court confirmation, but rather we were looking at a public crucible in which I think every American that had invested himself or herself in this event wanted to see their own sense of justice realized. How did that come about in some of your own reporting on the perception of the second part of the hearing in which you had people that may not have been overtly political, but suddenly they were invested in this?

Carrie: It was interesting to talk to some of the groups we spoke to, people from the organizations who were doing some more of this grassroots work or knocking on voters doors and, and talking to individuals like Susan B. Anthony List or Americans for Prosperity, Tea Party Patriots. And then Concerned Women for America who is bringing in lots of activists. They spoke about how they felt a difference in their activists that people they were talking to, and even the people whose doors they were just knocking on, where after the confirmation process kind of just took that turn for crazy with the allegations. It ironically, in many cases, people became more convinced that Kavanaugh needed to be confirmed. And it was because of this overstepping by Democrats by the media, by some of the partisans involved that people, people got so frustrated, especially with the idea that due process was going to be completely abandoned simply as a partisan and political expedient. Because we know we have to defeat this guy even if it does trample on notions of due process. And so that got a lot of people really upset. We had people saying this is the most activated we’ve seen people since the Obamacare passage. And that’s, that’s saying a lot. Susan B. Anthony listed surveys of the people whose doors are knocked out. They found in some places like Missouri that support for Kavanaugh and for Republicans in 2018 actually went up immediately following those allegations. So that was a very interesting dynamic.

Garrett: Mollie, did you want to add anything?

Mollie: Probably just point out that there were so many weird things happening with the Blasey Ford allegations, how people responded to them. You saw multiple people writing pieces that said things like, I was once assaulted. So I believe Blasey Ford, and this has two different things I think to take from it. One, the incredible amount of pain and suffering that comes from sexual assault and how it can affect people over the course of a long period of time, right? But to how people just forgot that their assault didn’t mean that someone else had the evidence to support their allegation of assault. And that it’s important. This is why due process is important. This is why presumption of innocence is important because there really is evil in the world and bad things happening in the world. And we want to take those things very seriously and hold people accountable and allegations are not sufficient for conviction. Thank God they are not because so many innocent people would be persecuted. This is an important ideal if we care about holding people responsible for sexual assault. And it seemed like that got forgotten for a period of a few months.

Garrett: Carrie, throughout the book you draw frequent parallels to another confirmation battle that occurred in two parts: that of Justice Clarence Thomas in the early nineties. And you’ve even said that you helped write this book in part because of a fear that the record of Justice Kavanaugh may be mistakenly portrayed and influence public understanding of the facts in the ensuing years as has been the case with your former boss and the accusations by Anita Hill. In addition to articulating some of the most striking similarities, what were some of the most striking differences in the confirmations of Justice Clarence Thomas?

Carrie: Yeah. Well, obviously anyone who is kind of watching during the Thomas hearings saw this as a deja vu of a “Gosh, I thought we would never get to this point again. And here we are.” It was a parallel for everything from the initial part of the confirmation where they were asking for oppressive of levels of documents; they were distorting his records. Too, of course, the unsubstantiated allegations leaked from a Senate Judiciary Committee, information at the last minute, and the circus of the second hearings– down to even some of the evidence where with Justice Thomas, you had many, many women who worked with him and Anita Hill contemporaneously and said, “This doesn’t sound like the person we know it all.” Same kind of story where you had all these women stepping up saying, “We were at high school together with these people. This, this story doesn’t sound like anything that would make sense to me with, with Brett Kavanaugh.” So, what concerned me more is that is the part that happens after that, which is the attempt to discredit the then Justice after they’re confirmed. And so obviously I wanted to make sure that there wasn’t the opportunity to rewrite history, to have a revisionist view of what happened in an effort to discredit Justice Kavanaugh’s time on the bench. I think a lot of people feared that he would do something that was more conservative than they wanted and so they had to figure out some way to create an asterisk next to his name. There were, there were differences, and frankly, one of them is just how much worse this was. But when I was talking to people at the beginning of the Kavanaugh process, I would warn people saying, hey, this is the pattern we have seen in the past. This is what they’re going to do to him and describe all of these things. And I had people afterwards saying, “Oh my gosh, you just, you said it word for word, where they’re both, they’ll do this to his records. Then they’ll come up, come after him with personal attacks.” But what I always stop short of saying is this could be the most contentious and hard confirmation in our nation’s history because I had Justice Thomas’ hearings in the back of my mind. And I thought, “I can’t, I can’t say that in good faith. I don’t think it’s going to be as bad as that.” It was worse. It was worse because the behavior on the part of the senators was worse in terms of their just abandonment even of due process. At least at the Thomas hearings, Joe Biden was saying, “You do have a presumption of innocence.” Now, he did some other things as head of the committee that I certainly can’t commend him for, but he was at least saying that. There were actually Democrats who voted for Thomas. In fact, strangely, he is the only justice in the court who was confirmed by a Senate controlled by the opposing party. It’s kind of shocking that the one who had previously the most contentious hearing was nonetheless confirmed by a democratic Senate as a Republican nominee. So that was a time where there was at least some degree more of consideration for recognizing that not all allegations have to be believed just out of hand. I think also just the level of the allegations obviously took a step up. With Thomas, it was sexual harassment. It was rude statements. Maybe someone who was being inappropriate in the workplace is as an adult. Right? Which is one thing. This is, we’re talking about his high school behavior, but we’re also talking about something that is much worse, initially attempted rape. And then of course, this, the subsequent allegations ballooned into serial gang rape into a crime spree across the country. You’ve got things popping up in Colorado and California and then Rhode Island, all over the place, that just became absolutely ludicrous. Although in some ways the increased, just bizarreness of the allegations, ultimately was an asset because I think it looks so insane to suggest that this person had had this level of a crime spree. Someone who had been cleared by the FBI repeatedly at six background checks at the highest levels somehow could have had secret, crazy existence. Just beggars belief. So, there were ways that it actually took a turn for the worst here.

Garrett: Just a quick follow up on that, Carrie. The processes that were put in place after the Thomas hearing to prevent a future circus, such as the Thomas hearing, were unable to be properly followed because there were not senators acting in good faith. I think that the behavior of the Senate Democrats was abundantly clear. Do you attribute the counter measures taken by some of the Republican staff such as the hiring of Rachel Mitchell to do questioning and then also the bulldog behavior of Mike Davis with characters such as Michael Avenatti was a successful move in lieu of following of those processes, which were largely being ignored?

Carrie: Yeah, I mean I think the idea of having a system where you could confidentially investigate allegations so it doesn’t drag either the accuser or the nominee’s name through the mud and get a public circus is a great idea. But as someone who said of Christianity, “It was not tried and found wanting, it was found difficult and left untried.” And on this case it was found politically inconvenient and left untried because of Senator Feinstein who knew very well that these processes were there. She has been in the Senate for decades; she has used them on other nominees. They did not turn this information over to the FBI. Later it was claimed that this had to do with trying to preserve confidentiality for Christine Blasey Ford but knew very well that there was a confidential process to investigate these claims and she did not take advantage of it. So this I think hands down it and almost across the spectrum of people on both of these issues recognized that was an incredible act of senatorial malpractice there of doing that. But I think unfortunately it seems to have been a calculated one cause it certainly did work out to have the maximum positive possible public splash value there. So I think what happened then with the Republicans and Senator Grassley’s team was excellent on this. He was the chairman of the judiciary committee at the time. We recognize that we can’t play by the Marquess of Queensberry rules here. We can’t just assume that they’re going to follow suit. So, they did a few counter measures, as you said, themselves. I think one of the most useful ones was the idea of when allegations are being made instead of normally one, would investigate the allegations in a bipartisan fashion before doing anything about it. What was happening was the Democrats are refusing to participate in those investigations. So they were turning into one-sided investigations, but because one team was boycotting and then then the Democrats would say, this is a partisan investigation. We can’t trust it. But they also were then using the presence of additional allegations and saying, “Oh, there’s more allegations.” And if you just leave it there with this insinuation, it sounds like there’s more potentially credible allegations. So Grassley’s team said, “What, we’re just going to put these all out there and let people see the ridiculous stuff that’s being submitted.” And many times submitted directly by the senators themselves who were obviously we’re not making the allegations, but were passing them on. And senators’ offices have told us, “You get a lot of crazy stuff that comes through on one of your jobs is to kind of filter out the just nutty claims or stuff from real things.” These offices were passing on things that were just patently on their face not credible allegations. And so when they put those out there in the public, it became very clear that this is not establishing a pattern of real credible allegations. This is establishing a pattern of people making wild and unsubstantiated claims. And I think that really was incredibly beneficial in the long run for team Grassley and for getting a Kavanaugh confirmed.

Maura: Mollie, during the nomination process, Trump tweeted, “I’ve no doubt that if the attack on Dr. Christine Blasey Ford was as bad as she says, charges would have been immediately filed with local law enforcement authorities either by her parents or herself. I asked that she bring those filings forward so that we can learn date time and place.” He also mocked Ford’s testimony saying, “I had one beer. Well, do you think it was? Nope. It was one beer. How’d you get there? I don’t remember. Where’s the place? I don’t remember how many years ago was it? I don’t remember.” Do you think Trump’s strong hand in the process, particularly after the assault allegations, had an impact on the outcome of Kavanaugh’s confirmation and how was the public perception of Kavanaugh in itself shaped by being a Trump nominee?

Mollie: Yeah. There were so many interesting things about how the White House handled Donald Trump’s Twitter feed during these allegations. The first and most important thing to say is that there might’ve been no president better suited to withstand dubious allegations against a nominee than Donald Trump. It was something where not only just because of his nature and personality, but because they actually were vetting for this quality of being able to be strong under fire and he built that into the process from the very beginning with his White House Counsel, Don McGahn. So that’s the most important thing. But they strategically didn’t have him tweeting. One of the things that Carrie and I learned that I thought was interesting is these tweets, you always think they are just him firing off whatever he’s feeling in a given moment. But the communications team actually is quite intentional about the Twitter feed and they work and they discuss like when to tweet and where to tweet. So definitely when the allegations first came out, there was intentional restraint and then at some point it was so ridiculous, particularly the way the media were covering things versus the way everybody else in the world was kind of responding to the allegations and their lack of substance. That having the president tweet out some basic questions about not knowing anything about the attack, where it happened, how it happened, who had happened not having any of those details that you might expect from someone making such a serious allegation was intentional and the whole team thought it was important not just in his Twitter but also it gives a speech at a campaign rally where he brings up some of the inconsistency with her allegations. As for being a Trump nominee, I think oddly enough, Kavanaugh’s greatest weakness might’ve been his close affiliation with the Bush administration. That’s more what he actually is like. He is he’s someone you’d expect. You would tie more to the Bush family. Brett Kavanaugh worked for George Bush for many years, both in the White House counsel and as staff secretary. He was a nominee from Bush for his federal court and had to be nominated twice cause that was during the era when Democrats were also blocking a Bush nominees and his wife Ashley was George Bush’s personal secretary going back to Texas. They are friends with each other. They truly like each other and their personalities are very sort of similar. So in a way, the thing that helped him, I think was being a Trump nominee. We tell the story about how they were getting lots of advice from his friends in the Bush administration to be demure and to be sympathetic to just constantly praise Blasey Ford for being brave and talk about his role with helping women in their professional careers. And Don McGahn keeps telling him, remember, you’re a Trump nominee and Trump fights. So blending those two things was important for Brett Kavanaugh personally, but also, I think you saw this blending in the Republican Party in general or among conservative voters in general. They might prefer the George W. Bush approach, but they kind of realize that they’re in a moment where they might need a little bit of a Donald Trump approach. And this is a battle that’s going on with inside Brett Kavanaugh, but also inside the Republican Party.

Garrett: Well, yeah. And, Mollie, the impact then of Kavanaugh’s turn after Dr. Ford’s testimony is probably the greatest evidence that he realized that this was no longer about defending just this nomination; this was about defending his name. Being a Trump nominee, would you say, liberated him in this way?

Mollie: I think so, but I also think Michael Avenatti liberated him in a way at the point that he’s doing his testimony. He, yeah, as you put it, it’s not just about the Supreme Court seat, it’s about his name, his reputation. You have media outlets claiming he shouldn’t be around children anymore, and he coaches youth basketball. So it’s like his whole life is, is flashing in front of him, his career, everything. He’s worked so hard for it at that point. It’s not even about whether he will inch his way onto the Supreme Court, but just about whether his reputation, which he has worked so hard to cultivate and, a lifetime of friendships and good treatment of men and women in his midst. It’s all, it’s all flashing away and anyone can kind of understand the emotion that would come with trying to just defend your name at that point.

Garrett: Carrie, Ford’s letter describing the sexual assault allegations was leaked despite her wishes. This is the initial letter to her congresswoman, Anna Eshoo, in mid-July. But even if the leakers, whose identity we still don’t know to this day, were held responsible for their actions, would pursuing justice in such an instance prevent future instances of injustice? In other words, would such an investigation be enough to stop Senate Democrats in the future from such a breach or do you think that they’ll do anything to vilify nominees that oppose their agenda?

Carrie: Well its hard to say anything would be 100% enough, especially when the stakes are as high as they are on the Supreme Court. This is what we saw when we had a replacement of a swing justice with a Trump nominee. Imagine if you were placing a liberal justice with a Trump nominee. The stakes would be even higher in terms of shifting the balance of the court. However, we do believe that having accountability will go a long way toward doing that. If people are able to make allegations without fear of any consequences, particularly ones that are, is a bizarre and unsubstantiated and contradicted as things like the Swetnick and Avenatti allegations. Some of the people who sent things in within days admitted that that was false and we had admitted false allegations here. And they’ve been referred for criminal prosecution by the Department of Justice. As of yet, we don’t know of any action that had been taken on those. And I think that is a concern that that is something that’s just left to go. The senators who were involved in this, we have everything from early on in the process. Senator Booker who willfully floated the wolves of the Senate by disclosing confidential information that was shared under a memorandum of agreement with the White House from the FBI background information from the Presidential Records Act. He’s willing to just put that out there that does serious harm to the relationships between the Senate and the White House and violates the Senate rules. It should be taken seriously. The rules committee unfortunately didn’t. There weren’t any real repercussions for him up for that breach of the rules. And investigation of who actually leaked these documents, that was something that was done after the Anita Hill hearing and they unfortunately, they weren’t able to pin down exactly who it was, but to the idea that we wouldn’t even make an effort that the Senate wouldn’t even attempt to figure out. Because if this is something that she said she really did not want to have released, boy, the Democrats ought to be very concerned about that as well as the Republicans. Anyone who cares about protecting the confidentiality of people who send things to the Senate. Again, there’s confidential procedures to do it. They didn’t do those. But someone who had that letter and then everyone who knew, who had it was Democrat, right. Some of those people leaked it and that’s a real problem or even repercussions for her lawyers. As a lawyer, I was horrified when during the hearings Rachel Mitchell asked who were talking about the fear of flying incidents. Not only did she uncover that perhaps the Blasey Ford was not as afraid of flying as she was made out to be by her lawyers.  But also she said, “Oh, I would have loved to, I was hoping that I would not have to travel for these hearings. But it turns out I had to. And so I managed to get myself on a plane and come.” And so Rachel Mitchell seem to be a bit taken aback to like, “Wait a minute, Senator Grassley offered repeatedly to come to you to send even a female staff to you, if that’s more comfortable, whatever it is, to do this in a way that’s not on camera, to do it in a way you had your options” and somehow her lawyers ended up steering her toward the option that was the maximally public versus what she claimed that she was interested in. And it appears her statements, she wasn’t even aware those other options were there. As a lawyer, that is a shocking breach of your duty to your client. And that’s something that I understand there were some bar complaints filed against them, but I think that’s something that should result in serious disciplinary action for a lawyer if it turns out, then it’s possible that she was not accurately representing what was told her. But it’s also if she is telling the truth, then her lawyers are seriously in breach of their own duties to their clients. That also hasn’t been held accountable.

Garrett: Carrie, I want to come back to a part of your book that I think most resonated with the viewing public. You referenced the case of Coffin v. the United States to detail the longstanding principle in the American court system of the presumption of innocence. “The principle that there was a presumption of innocence in favor of the accused is the undoubted law, axiomatic, and elementary.” However, it was clear the presumption of innocence standard was largely ignored by Senate Democrats in their questioning. So how much of this was connected to the #MeToo movement and it’s resonance? How did the rejection or the seeming inversion of the presumption of innocence to the presumption of guilt in the portrayal of Kavanaugh by the media and Senate Democrats, how much did it stir conservatives and non-political citizens to his defense?

Carrie: Yeah, I think you’re right that some of it is probably related to the, just the cultural #MeToo moment there where people Mollie referenced that there were some journalists who were saying they published stories to create a pattern. I think one of the problems that we saw here that you referenced as well, if people saw that, that “Oh, this is part of a cultural pattern. And we’ve seen other men doing this, therefore we can just jump to the conclusion that this man is guilty of something.” I think that’s a very dangerous presumption when we live in a system where the rule of law obviously. But I also think what we saw with people that were willing to abandon those principles of due process because of political ends and that is antithetical to the rule of law. The idea of having the rule of law is that we have a set of principles and laws that guide us irrespective of whether it’s someone we agree with or disagree with, whether it’s the party you belong to or not, whether it’s going help us or hurt us in the end. And I think you saw people who were willing to have double standards here. And I know a lot of people say, I’ll just, it didn’t have double standards. They have no standards at all. However, we don’t have to have higher, higher goals for those who represent us and the idea that we would just abandon this notion of the presumption of innocence simply because it’s politically expedient is very worrisome. I think that was one of the motivating forces that lit a fire under so many Americans. And we did see in 2018 I think even electoral results that reflect the outrage at the way that that due process was being abandoned for political ends there. And there were definitely close races that seem to have gone to Republicans in, in ways that the losing democrats in those races themselves attributed that to continued frustration over what happened to Justice Kavanaugh.

Garrett: Yeah. It reminds me of one of our sort of animating impulses at the James Wilson Institute is we’re trying to restore the first principles of moral and legal judgment. And one of those necessary qualities before we do any kind of moral judgment is we remind our friends that you can only cast moral judgments in the domain of freedom. And that one of the easiest extrapolations of that principle is we don’t hold people blameworthy for actions or characteristics that they’re powerless to affect. The trick is that this is not in the Constitution, but this understanding is embedded within the very principles that the Constitution secures. Articulating that has been has been a goal of our statesmen. And Carrie, I just want to ask you if you think our Republican Senators, are they up to that challenge? Because I think oftentimes instead of being statesmen, they’re asked to almost take the route of least obstruction. And these hearings certainly reminded us that we need good people to rise to the occasion and to meet challenges where they’re at.

Carrie: Yeah. And I love the idea of that this is not just in the Constitution. This is a preexisting understanding of natural law, that these principles exist. And we talked about that with the notion of the presumption of innocence and due process because these long predate are our own bill of rights that obviously enshrines that for our Constitution, but you had the Democrats attempting to kind of get out of that by saying, “Oh, well this isn’t a trial. This is just a job interview as if we can suspend the normal rules of conduct because it’s not actually in a criminal process.” I think we did see several examples of of impassioned defense of these principles during the process and it’s interesting that they came from senators who weren’t, I did not that, not that senators like I think Mitch McConnell and Chuck Grassley in their behavior in managing this process did show a commitment to those rules, but some of the speeches that stand out in my mind really are Lindsey Graham and Susan Collins. And those are two senators who on the topic of judges historically have been more along the moderate camp, but I think we’re so outraged by what had happened that they gave two very impassioned defenses. Senator Graham during the confirmation hearing, the second hearing that Kavanaugh had when he stood up and just let loose on all the Democrats. It’s a way that they were politicizing the process. His frustration over attempting to kind of reach out an olive branch and vote for a lot of democratic nominees and how that was absolutely not a courtesy that was returned and then Susan Collins in her just step by step systematic explanation of her standards of evidence and not only, She didn’t even just stick to the second part of this hearing, but really went through Kavanaugh’s record in a very systematic and methodical way. And then the evidence in this case pointing out that it’s not just about the emotion of well do we or do we not think that sexual assault is a serious thing and that will determine  what we decide to do in this case. But actually let’s look at the evidence and let’s try to take it in a rational way. I thought that both of those were great examples of appeals to the rule of law.

Maura: Mollie, you identify four women as playing key roles in the Kavanaugh confirmation effort, either directly or indirectly. Ashley Kavanaugh Justice Kavanaugh’s wife, Leland Keyser , a friend of Dr. Ford from her teenage years, [Rachel Mitchell], the special investigator hired by the Senate Republicans to question Ford and Kavanaugh, and Senator Susan Collins, whose support for Kavanaugh clinches the confirmation. Is it true that even if one of them had acted differently or not been involved, could one envision a failed confirmation?

Mollie: I’m not sure about that, but I do think in fact, Carrie said something earlier about many different factors leading to Donald Trump’s victory, which it had such a narrow margin that that they all can be considered definitive. Each of these women showed remarkable courage in different ways. And I think that that is worth highlighting and each in different ways. I’m just so struck by the fact that Ashley Kavanaugh prayed that her husband wouldn’t get the nomination, and then when he is given the nomination, she just immediately goes into supporting him, supporting the family, And having no idea how bad it’s gonna get. But just being a calm presence. How her time in the White House, including during 9/11, helps sort of give her resolve for how to handle bad things that are happening. How they don’t change their family values during this time, continuing to pray with their children and give them comfort. Leland Keyser to me is an amazing profile because she, her political hopes were at odds with what she was being asked to do and of telling the truth and she chooses to tell the truth and follow doing the right thing even when she wishes for a different political outcome. Rachel Mitchell, who is derided throughout the process for not being a bulldog who tears Christine Blasey Ford apart, but is actually this, I think she is absolutely pivotal in terms of securing the nomination because it was her calm and her reasonableness that convinces so many senators that they’d give her the standing ovation at the end of her presentation. Because of what a good job she did at nicely, properly showing the problems with Blasey Ford’s testimony. And then Susan Collins who Carrie was just talking about who just throughout the whole process took her advise and consent roles seriously. She evaluated the facts, evaluated the evidence and was not bullied. It’s interesting that the left thought that the proper approach to take with her would be to harass and threaten her and issue violent threats against her and her staff. She’s the last person on earth who would change her mind because she is bullied and whatever else you think about her, that is a remarkably admirable thing.

Garrett: I want to just come back quickly, Mollie, to Rachel Mitchell. Is it true that she had only a handful of days to prepare for the hearing and then even after her role in the hearing was finished, she had only another handful of days to prepare a report? Considering the circumstances, it seems astounding that she was able to do the job she was doing. And especially with the format of five minutes here, five minutes there, five minutes here, five minutes there…

Mollie: It is the format issue that I find most interesting because, yes, she was only interviewed like the Friday before the hearing. She flies out on I think Sunday, has only a couple of days to prepare it, and  go through the evidence to do what in her profession is the proper thing to do when someone alleges an attack, which is to conduct a forensic interview. That should have been step one before it went to the media before you started having other people sort of involved and polluting the process. She does her best to reconstruct a forensic interview, which is her professional expertise. She’s considered a nationwide expert in the interviewing of alleged victims. The day before she finds out she has to do it in five minute increments, which is completely at odds with the way you’re supposed to do an interview like this, which should just be a free ranging sort of not under pressure of time kind of interview where you get to ask the person alleging assault, all sorts of questions in different ways, in a very non-constrained way. But I thought she did a really remarkably good job given those constraints. And then you have to process everything under pressure of a national spotlight, writing a report, refining it and presenting it to the senators and go back to her job where she is again, a very well respected nationwide expert on the practice of interviewing victims of sexual assault and keeping her reputation and tactics really great.

Garrett: Yeah, it’s astounding. I had a conversation with a prominent law professor during the Kavanaugh hearing and I asked him if it would actually behoove the Democrats more to just let Rachel Mitchell take their question time because she was so effective at drawing out facts. And he agreed, citing the success in the Watergate hearings of letting committee staff question the witnesses there. Do you think that there’s ever a way that the senators will give up their time even to a seasoned professional?

Mollie: Absolutely not. I don’t think any Democrats would be Willing to do it. And I think the Republicans didn’t even want to do it themselves and had to be kind of convinced of it. So no, never get in between a senator and his microphone.

Maura: Mollie, how do you see Supreme Court confirmation hearings being conducted in the future after Kavanaugh’s confirmation? Well, such vicious confirmation battles dissuade the best candidates from putting themselves forth?

Mollie: I think that the way the the confirmation process will go will be dependent on what type of seat is being filled. As we note in Justice on Trial there was less hostility to filling Scalia’s seat with Gorsuch than Kennedy, a swing vote being replaced with someone from Donald Trump’s list. It would depend on whether the next seat is someone from the liberal block of justices being replaced or not. But I think people would be extremely naive to think that this won’t happen again. We go through great pains to demonstrate that the similarities between what happened to Kavanaugh and what happened to Thomas, Bork, and other previous nomination battles or elevation battle. And if it happened then and it happened now, you’d be naive to think it won’t happen again. Particularly if it’s someone like Ruth Bader Ginsburg being replaced with an Amy Coney Barrett or something like that, that the left views as a threat to their project of using the court to push progressive ideology.

Carrie: Yeah, I think it’s definitely a concern. We map out in the last chapter of Justice on Trial what I think is the most effective way to prevent this kind of thing from happening again and that would be from the courts to resume their constitutional role where they are not making policy, they’re not a creating, evolving, amending the law. They’re simply interpreting it and same goes to the Constitution. We have a constitutional process for amendments. It is difficult, but I think many people unfortunately argue to the courts and sometimes the court takes them seriously, [they] argue that congress is hamstrung. They’re bogged down. They’re not going to get anything done. The Court needs to step in here. Same thing with the constitutional amendments, “Oh this is so difficult. We haven’t been able to amend the Constitution in many years.” It hasn’t been as long as people think we had had, , dozens of amendments. But they say, “Well no one else could do it. The courts must step in.” That is a recipe for creating a political court because you’re taking the role that should be left to the political branches and giving it to the Supreme Court. So it is no surprise when the court is, because of the growth of the federal government and the growth of federal law and then also because of the willingness of court, the courts to rewrite that law when they feel it’s appropriate or necessary that you have the, the confirmation process become much more political as well. So if the courts stepped back from that political role, behaved more like judges, we could then return to a situation where the judge, where judicial nominations were not the flashpoint third rail kind of issue in American politics. If I knew that judges were going to judge, had it philosophy where he or she was going to simply be strictly faithful to what the law said, what the Constitution said, and what it originally was understood to me, not what we feel like in 2019 it ought to mean. I wouldn’t have to be worried: “Well, what is, what is he or she actually think about,” , you could give a laundry list of issues, whether it’s guns or abortion or marriage or family or the size of government, et cetera. It wouldn’t matter because they would be constrained by the law. I think that would be a much better system. And I hope with the, , with the nominees we have seen so far it’s the kind of judges we have seen Donald Trump putting on. I think more judges in the court like that would actually bring the court back into its proper Constitutional role here.

Garrett: Again, the book is Justice on Trial: The Kavanaugh Confirmation and the Future of the Supreme Court from Regnery Publishing. Thank you so much to Mollie Hemingway and Carrie Severino. We were just overjoyed to be able to speak with you today.

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Law and liberty cannot rationally become the objects of our love, unless they first become the objects of our knowledge.
— James Wilson, Lectures on Law, 1790