“Justice on Trial” A Brief Review

I recently read Justice on Trial: The Kavanaugh Confirmation and the Future of the Supreme Court by Mollie Hemingway and Carrie Severino. The book augments and reinforces my understanding of the political battle royal that began a nanosecond after Justice Kennedy announced his retirement from the Supreme Court.

The book is chock-full of details that are damning to the opponents of the nomination of Brett Kavanaugh (or any other constitutionalist) to replace Kennedy. Rather, the opponents would consider the details to be damning if they had an ounce of honesty and integrity. What comes through — loudly, clearly, and well-documented — is the lack of honesty and integrity on the part of the opponents of the Kavanaugh nomination, which is to say most of the Democrats in the Senate, most of the media, and all of the many interest groups that opposed the nomination.

Unfortunately, it is unlikely the authors’ evident conservatism and unflinching condemnation of the anti-Kavanaugh forces will convince anyone but the already-convinced, like me. The anti-Kavanaugh, anti-Constitution forces will redouble their efforts to derail the next Trump nominee (if there is one). As the authors say in the book’s closing paragraphs,

for all the hysteria, there is still no indication that anyone on the left is walking away from the Kavanaugh confirmation chastened by the electoral consequences or determined to prevent more damage to the credibility of the judiciary… [S]ooner or later there will be another vacancy on the Court, whether it is [RBG’s] seat or another justice’s. It’s hard to imagine how a confirmation battle could compete with Kavanaugh’s for ugliness. But if the next appointment portends a major ideological shift, it could be worse. When President Reagan had a chance to replace Louis Powell, a swing vote, with Bork, Democrats went to the mat to oppose him. When Thurgood Marshall, one of the Court’s most liberal members, stood to be replaced by Clarence Thomas, the battle got even uglier. And trading the swing vote Sandra Day O’Connor for Alito triggered an attempted filibuster.

As ugly as Kavanaugh’s confirmation battle became, he is unlikely to shift the Court dramatically. Except on abortion and homosexuality, Justice Kennedy usually voted with the conservatives. If Justice Ginsburg were to retire while Trump was in the White House, the resulting appointment would probably be like the Thomas-for-Marshall trade. Compared with what might follow, the Kavanaugh confirmation might look like the good old days of civility.

Indeed.