Washington Lawyer - May 2020 - 38

WORTH READING

Recapping a Bitter Confirmation Fight
Review by Ronald Goldfarb
The Senate confirmation votes on recently appointed justices also tell
the story of increased polarization. Samuel Alito was confirmed 58-42,
Neil Gorsuch 54-45, and Kavanaugh by an even narrower 50-48 vote.
The Kavanaugh hearings transfixed a huge television audience. Partisan
political groups sponsored national TV ads about Kavanaugh. The
Federalist Society championed his candidacy, but 2,400 law professors
signed a letter stating that Kavanaugh was unfit and lacked judicial temperament. Many observers were horrified by the attacks against him,
others by his dramatic counter-complaints.

fter binge-watching the dramatic Senate confirmation hearings of Brett Kavanaugh, having some
time to ponder its lessons, and reading three books
by accomplished journalists, it is time to attempt to
assess what happened.
Was it simply a vicious political fight that damaged all
the key parties? Or was it evidence of a serious institutional problem at the juncture between the chief executive, Congress, and the U.S. Supreme Court - one
with important enough constitutional implications to
seek enlightenment about a now-historical problem?
If, as is widely believed, the Supreme Court's essential
power comes from its credibility and trust in its neutrality, our country is at a stage that would disturb the
Founding Fathers, for sure.
It all started with the 1987 confirmation hearings of Robert Bork,
former Yale Law School constitutional law professor who served as
U.S. solicitor general, and then acting attorney general after the
notorious Saturday Night Massacre prompted by President Richard
M. Nixon. Not long after Bork was rejected by the Senate in a 42-58
vote, a rare defeat, Clarence Thomas was confirmed in 1991 by a stillcontroversial, narrow 52-48 vote.
In the post-Bork era, the process has gotten so political and bitter
that candidates are now rehearsed to testify in a manner as vanilla as
possible. Chief Justice John Roberts told a Senate panel that he was
just an umpire, calling balls and strikes. Imagine the late and muchrespected Hugo Black, a KKK member early in his career, even getting
nominated, let alone confirmed 63-16 in August 1937 after a six-hour
debate.

38 WASHINGTON LAWYER

MAY 2020

Confirmation Bias: Inside Washington's War Over the Supreme Court, From
Scalia's Death to Justice Kavanaugh by New York Times Washington correspondent Carl Hulse starts with Alexander Hamilton's statement in
Federalist No. 76 about the Senate's role of advice and consent: "It is not
easy to conceive a plan better calculated than this to promote a judicious choice of men for filling the offices of the Union."
How quaint a notion and how ironic. Our judicious choices for the
Supreme Court have since included four women and two African
American men. But surely there must be a better way to carry out the
Senate role than we have seen in recent history. Hamilton would have
cringed watching the recent confirmation hearings and Merrick
Garland's denial of one.
Another book on Kavanaugh, by Times reporters Robin Pogrebin and Kate
Kelly, takes a deeper look at his formative years and the sexual misconduct allegations leveled against him. The Education of Brett Kavanaugh:
An Investigation discloses a few new nuggets about that heavily covered
event. (For example, star witness Christine Blasey Ford never showed her
attorneys or questioners her therapist's notes that would have shown
that her story was ante litem motam, as we attorneys say, evidence that
her complaint was made at a time when she had no reason to fabricate.)
Pogrebin and Kelly end up concluding that Ford and a witness who never
testified, Deborah Ramirez, were mistreated by Kavanaugh (Ford when
she was 15 years old, and Ramirez during college). The authors also
conclude, with good evidence, that over the next 35 years Kavanaugh
became a better person.
"The public at the time, and now, is divided about whose story was
true." Gender politics, they say, widened the gap between viewers.
Pogrebin and Kelly agree that "this moment was the nadir of a toxic
cultural moment." For the first time, the Senate committee hired a state
prosecutor, a woman, to question Ford, aware of the sensitive element
of her testimony. The authors reveal their inner judgment favoring Ford,
but they also do a fair job of presenting arguments favorable to
Kavanaugh.
Among the Kavanaugh literature, Washington Post editorialist Ruth
Marcus's Supreme Ambition: Brett Kavanaugh and the Conservative Takeover
is the best written and most thoughtful one. Marcus concludes that the
Kavanaugh confirmation was a "story of history converging and repeating
itself" that "echoed the ugly and contested sexual drama of the Clarence
Book covers: Confirmation Bias, Harper Collins; The Education of Brett Kavanaugh, Penguin Random House;
Supreme Ambition, Simon & Schuster; Practical Equality, W.W. Norton & Company

Washington Lawyer - May 2020

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