Book Review: Justice on Trial by Mollie Hemingway and Carrie Severino

“History will be kind to me because I intend to write it” is often ascribed to Winston Churchill.  Justice Brett Kavanaugh could do little better in presenting his case for history than this after-action report by Hemingway, a reporter for the Federalist and Severino, a former Thomas clerk and a participant in many of the judicial wars through her work at the Judicial Crisis Network.  Justice on Trial is chock-a-block with small, telling vignettes that only a participant or someone with impeccable sources could obtain.  For instance, Justice Kavanaugh’s suits being temporarily stored in a neighborhood kid’s treehouse and retrieved for him by the kid to avoid a hostile, untiring, and intrusive press siege of his house.  Similarly, the image of Senator Ted Cruz booming out “Treason!” in imitation of what the Democrats were likely to confront Justice Kavanaugh with will stick with the reader.

The authors candidly acknowledge that this book was published as quickly as possible so as to prevent those hostile to Justice Kavanaugh, and the judicial philosophy he represents, to take and hold the field unchallenged on this historic confirmation.  Severino is admittedly animated by the Clarence Thomas confirmation.  Thomas was confirmed but, as in the Civil War, the losers seemed to write the history books.  While most of America believed him and not his accuser, for the very good reason that his story held up to contemporaneous accounts of others and hers did not, 30 years later the press simply stated that Anita Hill was poorly treated. All the weaknesses of the accusations and the strengths of the defense have been memory-holed by a biased press.  Jane Mayer’s “Strange Justice” is emblematic of the “Lost Cause” narrative of the Thomas hearings. 

To forestall the injustice of slanders being the reigning narrative this book tells in vivid detail the blow-by-blow from Justice Kennedy’s resignation and Kavanaugh’s nomination to his  confirmation months later after a grueling ordeal.  Included are the forces arrayed against him, the action and mood in the White House. the key players involved, and the see-saw nature of his fortunes.  The story also includes, unusually for a modern Washington epic, spiritual motifs such as what psalm or bible passage the participants drew strength or warning from.

As a D.C. lawyer, long-time observer, and minor participant in Supreme Court confirmations since attending the Bork hearings, I am familiar with many of the people discussed and described in this tale, and all the sketches ring true.  Conservatives of a certain kidney will feel the authors are too critical of George W. Bush, John Roberts and the pre-Trump Republican party, and perhaps too solicitous of the President.  The deeper message is the great tasks that can be accomplished when the entire Republican Party works together.  President Bush and President Trump both exerted every ounce of their strength to push his confirmation, and each was effective with participants the other might not have persuaded.

This is a sympathetic treatment of Justice Kavanaugh (though the revelation he used ketchup on pasta gave me pause in my support), but all allegations against him are explained, described and weighed here, with a searching eye.  The weird and discreditable stories, some recanted others contradicted so thoroughly as to be unbelievable, that emerged against Justice Kavanaugh are a stark reminder that in a country of 330 million people the spotlight draws all sorts.

The only accusation that mattered in the end was that of Christine Blasey-Ford.  On her unsupported, contradicted, and changing story of an assault, the Democrats attempted to destroy a man with an unblemished life.  The authors make clear that not only did the accuser and the story have problems, but the way the Democrats handled the entire matter would be discreditable even if Blasey-Ford’s shifting and uncorroborated tale had more substance.  Debbie Katz, the indefatigable Democratic foot soldier and Blasey Ford’s lawyer, comes in for just criticism, but so does Dianne Feinstein and the entire Democratic judiciary committee.  As to Blasey-Ford’s story, the summary of the Republican’s designated interlocutor Rachel Mitchell’s findings at pages 248-250 should be bookmarked and referred to by every Republican and conservative from now to kingdom come.

This book has heroes, including Justice Kavanaugh and his wife Ashleigh that any veteran of the judicial wars will recognize; Leonard Leo of the Federalist Society; Don McGhan, White House Counsel; Senator Chuck Grassley and Senator Lindsey Graham.  Yet more amazing in the current environment are those heroes and heroines who played against type and would not let a baseless accusation and a mob mentality sway them.  Blasey-Ford’s friend, Leland Keyser, is chief among them.  One of the four people Blasey-Ford named as being at the party where she claimed Justice Kavanaugh assaulted her while in high school, Keyser was not in the Kavanaugh camp.  By simply corroborating any portion of the story she could have sunk Kavanaugh.  She appears to be, if anything, a Democrat.  But she did not know Brett Kavanaugh and believed she never met him.  This is devastating to Blasey-Ford’s tale and there is no reason for Ms. Keyser to lie about it and, as the book demonstrates, enormous pressure to do so.  Yet she did not.  Rejecting the blandishments of fame, fortune and friendship she held firm and told a consistent story.  That is remarkable.  Senator Jeff Flake who drove many Republicans crazy with his vacillations did two things that aided the nomination.  He obtained a week-long delay so as to investigate new allegations, and this demonstrated Republican good faith.  He voted for confirmation even though he was being driven from office by his hostility to President Trump and had no Senate race to win.  Finally, Senator Susan Collins, a pro-choice Republican from Maine, not only remembered, but taught the chamber what it should never have forgotten.  Due Process is all we have between us and the mob.  Her floor speech on the subject, which she did not have to give, was riveting and is worth rereading whenever some reporter tells you what a travesty it is that Justice Kavanaugh is on the Court. 

There are problems with the speed at which the book was written, for instance Senator Cory Booker’s outrageous claim that voting with Kavanaugh was to be “complicit in evil” is the heading of one chapter, but the quote explaining that does not appear until later in the book.  Also, the circumstances of the filibuster of Abe Fortas’s Supreme Court nomination would have been helpful to the reader and to the argument.  But these are quibbles.  Justice on Trial belongs on the shelf of anyone with an interest in the Supreme Court and the confirmation wars since the Bork hearings.

Justice of Trial relates the story of a Roman prosecutor attempting, without proof, to convict a citizen of embezzlement.  The defendant denied it and there was no proof.  The prosecutor cried to Emperor Julian “Oh, illustrious Caesar!  If it is sufficient to deny, what hereafter will become of the guilty?”  The Emperor replied, “If it suffices to accuse, what will become of the innocent?”  Would that the Senate Democrats had as firm a grasp of Constitutional principles as an Emperor of ancient Rome.