Justice on Trial: The Kavanaugh Confirmation and the Future of the Supreme Court
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41. Brett M. Kavanaugh, “Separation of Powers During the Forty-Fourth Presidency and Beyond,” Minnesota Law Review 103, http://www.minnesotalawreview.org/wp-content/uploads/2012/01/Kavanaugh_MLR.pdf.
42. Ryan J. Foley and Curt Anderson, “Kavanaugh’s ties to disgraced mentor loom over confirmation,” August 29, 2018, Associated Press News, https://www.apnews.com/e37ba9bc11014b72a5db6f926f80eb42.
43. “Report on the Record of Supreme Court Nominee Brett M. Kavanaugh,” Demos, https://www.demos.org/sites/default/files/publications/Record%20of%20Supreme%20Court%20Nominee%20Brett%20M%20Kavanaugh.pdf.
44. “Demand Justice,” Facebook, August 18, 2018, https://www.facebook.com/wedemandjusticenow/videos/272437933362642/.
45. Thomas Jipping, “Opposing Kavanaugh by ‘Whatever Means Necessary,”” National Review, September 24, 2018, https://www.nationalreview.com/bench-memos/opposing-kavanaugh-by-whatever-means-necessary/.
46. Karen Hosler, “Ashcroft confirmed amid fierce criticism,” Baltimore Sun, February 2, 2001, https://www.baltimoresun.com/news/bs-xpm-2001-02-02-0102020249-story.html.
47. Neil A. Lewis, “Mixed Results for Bush in Battles Over Judges,” New York Times, October 22, 2004, https://www.nytimes.com/2004/10/22/politics/campaign/mixed-results-for-bush-in-battles-over-judges.html; “Washington Talk; Democrats Readying for Judicial Fight,” New York Times, May 1, 2001, https://www.nytimes.com/2001/05/01/us/washington-talk-democrats-readying-for-judicial-fight.html.
48. “ ‘He Is Latino,’ ” Wall Street Journal, November 14, 2003, https://www.wsj.com/articles/SB106877910996248300.
49. The number was important since seven Democrats were enough to determine whether Democrats could filibuster and seven Republicans were enough to determine whether Republicans could invoke the “nuclear option” that got rid of the 60-vote cloture.
50. Several other Republican nominees were ultimately blocked by the filibuster: Miguel Estrada, Charles Pickering, Carolyn Kuhl, William Myers, and Henry Saad. All ultimately withdrew after having their votes blocked.
51. Michael Steele, “The SCOTUS nomination clearly demonstrates that elections have consequences,” July 11, 2018, The Hill, https://thehill.com/opinion/judiciary/396476-the-scotus-nomination-clearly-demonstrates-elections-have-consequences.
52. Bill Scher, “Democrats Should Not Fear the Nuclear Option,” Politico Magazine, February 2, 2017, https://www.politico.com/magazine/story/2017/02/democrats-should-not-fear-the-nuclear-option-214730.
Chapter Four: Mootings, Meetings, and Mobs
1. United States v Jones, 565 U.S. 400 (2012).
2. Brown v Board of Education of Topeka, 347 U.S. 483 (1954).
3. Lawrence v Texas, 539 U.S. 558 (2003).
4. Citizens United v FEC, 558 U.S. 310 (2010).
5. Janus v AFSCME, No. 16-1466, 585 U.S. ___ (2018).
6. Justin Wm. Moyer, “74 arrested protesting Brett Kavanaugh’s Supreme Court nomination on Capitol Hill,” Washington Post, August 2, 2018, B03.
7. “Missouri: Trump vs. Clinton,” RealClearPolitics, https://www.realclearpolitics.com/epolls/2016/president/mo/missouri_trump_vs_clinton-5609.html.
8. Emily’s List v. Federal Election Commission, 581 F.3d 1 (D.C. Cir. 2009).
9. “Sen. Claire McCaskill–Missouri Contributors 2005–2018,” OpenSecrets.org, https://www.opensecrets.org/members-of-congress/contributors?cid=N00027694&cycle=CAREER&type=I.
10. “Booker: Senators Who Support Trump’s SCOTUS Pick are ‘Complicit in Evil,”’ Fox News Insider, July 25, 2018, https://insider.foxnews.com/2018/07/25/cory-booker-dems-who-support-trumps-scotus-pick-complicit-evil.
11. Patrick Leahy, “Kavanaugh’s Long, Long Record,” New York Times, July 24, 2018, A21.
12. Stephen Bates, “Brett Kavanaugh and the Starr Report: How Our Office Drafted the Impeachment Referral,” LawFare, July 13, 2018, https://www.lawfareblog.com/brett-kavanaugh-and-starr-report-how-our-office-drafted-impeachment-referral.
13. Yuval Levin, “The Kavanaugh Paper Flow,” National Review, July 11, 2018, https://eppc.org/publications/the-kavanaugh-paper-flow/.
14. “Questionnaire For Nominee to the Supreme Court,” United States Senate Committee on the Judiciary, https://www.judiciary.senate.gov/imo/media/doc/Brett%20M.%20Kavanaugh%20SJQ%20(PUBLIC).pdf, 63.
15. “Judge Roberts’ Judiciary Committee Questionnaire,” United States Senate Committee on the Jusiciary, 54–59, on CFIF.org, https://www.cfif.org/htdocs/legislative_issues/federal_issues/hot_issues_in_congress/supreme_court_watch/roberts-judiciary-questionnaire.htm.
16. “Questionnaire For Nominee to the Supreme Court,” United States Senate Committee on the Judiciary, https://www.judiciary.senate.gov/imo/media/doc/Neil%20M.%20Gorsuch%20SJQ%20(Public).pdf.
17. “Grassley: Kavanaugh Review Will Be Thorough and Fair, but No Taxpayer-Funded Fishing Expedition,” Committee on the Judiciary website, July 18, 2018, https://www.judiciary.senate.gov/press/rep/releases/grassley-kavanaugh-review-will-be-thorough-and-fair-but-no-taxpayer-funded-fishing-expedition.
18. “Democratic Leaders on Judge Kavanaugh,” C-SPAN via archive.org, July 31, 2018, https://archive.org/details/CSPAN_20180731_232900_Democratic_Leaders_on_Judge_Kavanaugh/start/120/end/180.
19. Thomas McKinless, “Senate GOP Stacks 167 Boxes to Illustrate Amount of Kavanaugh Papers Getting Released,” Roll Call, August 2, 2018, https://www.rollcall.com/video/senate_gop_stacks_167_boxes_to_illustrate_amount_of_kavanaugh_papers_getting_released.
20. Jordain Carney, “Schumer: Share ‘confidential’ Kavanaugh documents with entire Senate,” The Hill, August 20, 2018, https://thehill.com/blogs/floor-action/senate/402771-schumer-share-confidential-kavanaugh-documents-with-entire-senate.
21. Chuck Grassley (@ChuckGrassley), “SenSchumer, as chair I welcome any senator 2 stop by judic cmte any day (& nite) incl wknds 2 review cmte conf docs A desk is waiting +there r the hundreds of thousands docs already avail w/ more all the time Is nom now under consideration or is vote still pre-determined NO?” Twitter, August 20, 2018, 2:38 p.m., https://twitter.com/ChuckGrassley/status/1031656659167404032.
22. Burgess Everett and Elana Schor, “Schumer, Democrats wrestled over staging mass Kavanaugh walkout,” Politico, September 4, 2018, https://www.politico.com/story/2018/09/04/kavanaugh-democrats-supreme-court-hearing-806567.
23. The transcript of the hearings will be quoted throughout this chapter. “Senate Judiciary Committee Hearing on the Nomination of Brett Kavanaugh to be an Associate Justice of the Supreme Court,” CQ Transcriptions, September 4, 2018.
24. Frank Thorp (@frankthorp), “Sources tell @Kasie and me that this is a coordinated effort by Senate Dems on the Judiciary Committee, and that it was discussed during the holiday weekend on a call organized by Schumer,” Twitter, September 4, 2018, 7:01 a.m., https://twitter.com/frankthorp/status/1036977514281934853.
25. Everett and Schor, “Schumer, Democrats wrestled.”
26. CNN Politics (@CNN Politics), “GOP Sen. John Cornyn says this is the first Supreme Court confirmation hearing that he’s seen being carried out ‘according to mob rule,’ adding that it’s ‘hard to take seriously’ when Democrats have ‘already made up their mind before the hearing,’ ” Twitter, September 4, 2018, 7:44 a.m., https://twitter.com/CNNPolitics/status/1036988415844208640.
27. Marbury v Madison, 5 U.S. (1 Cranch) 137 (1803).
28. Virginia Kruta, “Kavanaugh’s Hearing by the Numbers, Straight from Deputy Press Secretary Raj Shah,” Daily Caller, September 4, 2018, https://dailycaller.com/2018/09/04/kavanaughs-hearing-numbers-raj-shah/.
29. Elizabeth Landers, “Meet the protestors interrupting Brett Kavanaugh’s confirmation hearing,” CNN, September 5, 2018, https://www.cnn.com/2018/09/05/politics/kavanaugh-hearing-protests/index.html.
30. Eugene Gu (@eugenegu), “Kavanaugh’s former law clerk Zina Bash is flashing a white power sign behind him during his Senate confirmation hearing. They literally want to bring white supremacy to the Supreme Court. Wha
t a national outrage and a disgrace to the rule of law,” Twitter, September 4, 2018, 12:44 p.m., https://twitter.com/eugenegu/status/1037063912896643072.
31. Dylan Matthews, “No, a former Kavanaugh clerk didn’t flash a ‘white power sign.’ Here’s what really happened,” Vox, September 5, 2018, https://www.vox.com/2018/9/5/17821946/white-power-hand-signal-brett-kavanaugh-confirmation-hearing-zina-bash-4chan.
32. Eli Rosenberg and Abby Ohlheiser, “Zina Bash Moved her Hand—and the #Resistance saw a white power symbol. Then she did it again,” Washington Post, September 8, 2018, https://www.washingtonpost.com/news/the-intersect/wp/2018/09/04/that-was-no-white-power-hand-signal-at-the-kavanaugh-hearing-zina-bashs-husband-says/?utm_term=.c29628288213; Mahita Gajanan, “A Kavanaugh Supporter Was Accused of Making a White Power Symbol. She’s a Descendant of Holocaust Survivors,” Time Magazine, September 5, 2018, http://time.com/5386860/zina-gelman-bash-white-power-symbol/.
33. Ed Whelan, “Refuting Anti-Kavanaugh Smears—Manny Miranda Controversy,” National Review, September 10, 2018, https://www.nationalreview.com/bench-memos/refuting-anti-kavanaugh-smears-manny-miranda-controversy/.
34. Seung Min Kim (@seungminkim), “Re: Kamala and her Qs re whether Kavanaugh discussed Mueller probe with anyone at Kasowitz – Dem aide tells me they have reason to believe that a conversation happened and are continuing to pursue it,” Twitter, September 5, 2018, 6:42 p.m., https://twitter.com/seungminkim/status/1037516325437022208.
35. Elana Schor, “Kavanaugh stumbles when grilled on whether he discussed Mueller probe,” Politico, September 5, 2018, https://www.politico.com/story/2018/09/05/kavanaugh-mueller-probe-hearings-809115.
36. John T. Bennett, “Harris Lands First Blow on Kavanaugh—But It Only Grazes Him” Roll Call, September 6, 2018, https://www.rollcall.com/news/politics/harris-lands-first-blow-on-kavanaugh-but-it-only-grazes-him.
37. Jennifer Rubin, “The second-most-intense guessing game in D.C.,” Washington Post, September 6, 2018, https://www.washingtonpost.com/news/opinions/wp/2018/09/06/the-second-most-intense-guessing-game-in-d-c/.
38. Senator Whitehouse is known for his liberal use of visual aids during hearings. During his opening statement his aide held up ten different signs with photos of the justices, charts, and tables. One intended to show why, contrary to all Supreme Court precedents, Kavanaugh should recuse himself from cases dealing with the president who appointed him, arguing that Trump had “a significant and dispropotiate [sic] influnce [sic] in placing the judge on the case.” See Mike Brest, “Dem Uses Poster With Spelling Mistakes to Suggest Kavanaugh Is Obligated to Recuse Himself If Hearing a Case About Trump,” Daily Caller, September 6, 2018, https://dailycaller.com/2018/09/06/dem-spelling-kavanaugh-trump/.
39. Cortney O’Brien, “Sen. Whitehouse Condemns Federalist Society . . . There Are Just a Few Problems,” Townhall, September 5, 2018, https://townhall.com/tipsheet/cortneyobrien/2018/09/05/sen-whitehouse-condemns-federalist-societytheres-just-one-problem-n2516136.
40. Since 2013 alone the League of Conservation Voters has given Senator Whitehouse nearly two hundred thousand dollars. See “Sen. Sheldon Whitehouse–Rhode Island,” https://www.opensecrets.org/members-of-congress/contributors?cid=N00027533&cycle=2018&type=C; Michael Beckel, “League of Conservation Voters Becoming ‘Dark Money’ Heavyweight,” The Center for Public Integrity, May 12, 2014, https://publicintegrity.org/federal-politics/league-of-conservation-voters-becoming-dark-money-heavyweight/.
41. Evan Mandery, “Why There’s No Liberal Federalist Society,” Politico, January 23, 2019, https://www.politico.com/magazine/story/2019/01/23/why-theres-no-liberal-federalist-society-224033.
42. And that doesn’t even include the powerful forces of legal academia and the professional establishment of the American Bar Association and state bar associations—hardly less liberal than the explicitly ideological groups. While there is a controversy over whether the ABA can be properly be called neutral in its judicial evaluations (discussed elsewhere in this book), the policy positions it takes as an organization are undeniably liberal. Eighty-two percent of law school professors in the 2010s were Democrats, and the figure was even higher at elite schools. Kate Hardiman, “Law schools dominated by Democrat professors, research finds,” The College Fix, August 31, 2015, https://www.thecollegefix.com/law-schools-dominated-by-democrat-professors-research-finds/; James Lindgren, “Measuring Diversity: Law Faculties in 1997 and 2013,” Harvard Journal of Law and Public Policy 39, (January 2016): 89. Ninety-eight percent of donations from Harvard Law School professors went to Democrats. Daniel Halper, “98% of Harvard Law Faculty Political Donations Go to Democrats,” Weekly Standard, May 1, 2015, https://www.weeklystandard.com/daniel-halper/98-of-harvard-law-faculty-political-donations-go-to-democrats.
43. Kevin Drum, “No Liberal Equivalent of the Federalist Society? Please.,” Mother Jones, January 24, 2019, https://www.motherjones.com/kevin-drum/2019/01/no-liberal-equivalent-of-the-federalist-society-please/.
44. Anna Massoglia and Geoff West, “Kennedy’s resignation sparks millions in conservative, liberal ad campaigns,” Center for Responsive Politics, June 28, 2018, https://www.opensecrets.org/news/2018/06/kennedys-resignation-sparks-seven-figure-ad-campaigns-from-conservative-liberal-groups/.
45. “Sixteen Thirty Fund,” Influence Watch, https://www.influencewatch.org/non-profit/sixteen-thirty-fund/; “Sixteen Thirty Fund Form 990,” Influence Watch, https://www.influencewatch.org/app/uploads/2019/03/Sixteen-Thirty-Fund-Form-990-2017.pdf.
46. Peter Olsen-Phillips, “Democrats Increasingly Rely on Dark Money,” U.S. News & World Report, April 30, 2019, https://www.usnews.com/news/politics/articles/2019-04-30/democrats-increasingly-rely-on-dark-money.
47. Eric Kessler is the founder and principal at Arabella Advisors and also serves on the board of the New Venture Fund and the Sixteen Thirty Fund.
48. One singularly ironic group, Every Voice, purports to be attempting to remove the influence of money in politics and supporting “small donor election programs,” while feeding at the trough of big donors including not only Sixteen Thirty Fund but Jonathan Soros, the Soros-funded Open Society Policy Center, and the Tides Foundation. “Every Voice,” Influence Watch, https://www.influencewatch.org/non-profit/every-voice/.
49. “New Venture Fund 990,” Influence Watch, https://www.influencewatch.org/app/uploads/2019/03/New-Venture-Fund-2017-Form-990-reduced.pdf.
50. Whitehouse also took aim at the Pacific Legal Foundation, criticizing it for engaging in impact litigation by finding sympathetic clients to bring cases it hoped would shift the law in the direction they favored. That technique was pioneered by the ACLU and NAACP and included such famous cases as Rosa Parks and Brown v Board of Education. Whitehouse treated it as a devious and underhanded ploy, although Judge Kavanaugh attempted to explain that it is a common tool of legal groups across the political spectrum.
51. Senator Cory Booker, “Booker Confidential–Kavanaugh Hearing,” Scribd, September 5, 2018, https://www.scribd.com/document/387988906/Booker-Confidential-Kavanaugh-Hearing.
52. Hans A. von Spakovsky,” Kavanaugh hearing day four: Democrats still land no punches,” Fox News, September 7, 2018, https://www.foxnews.com/opinion/kavanaugh-hearing-day-four-democrats-still-land-no-punches.
53. Kevin Breuninger and Tucker Higgins, “Democrats defy GOP warnings about Senate rules, release Kavanaugh documents,” CNBC, September 6, 2018, https://www.cnbc.com/2018/09/06/democratic-senators-say-they-will-risk-expulsion-fight-to-release-kavanaugh-documents.html.
54. Associated Press, “Sen. Cory Booker releases 28 new documents related to Kavanaugh,” NBC News, September 12, 2018, https://www.nbcnews.com/politics/supreme-court/sen-cory-booker-releases-28-new-documents-related-kavanaugh-n909101.
55. David Sherfinski, Alex Swoyer, and Stephen Dinan, “Accusations fly against Kavanaugh in craziest Supreme Court confirmation hearings in decades,” Washington Times, September 6, 2018, https://www.washingtontimes.com/news/2018/sep/6/brett-kavanaugh-c
onfirmation-hearings-feature-wild/.
56. Henry Rodgers, “Liz Warren Supports Protesters Who Interrupted Kavanaugh Hearing, Wants Them to Stay,” Daily Caller, September 4, 2018, https://dailycaller.com/2018/09/04/elizabeth-warren-protesters-kavanaugh/.
57. Jessica Chasmar, “Ruth Bader Ginsberg blasts Brett Kavanaugh hearings as ‘highly partisan show,’ ” Washington Times, September 13, 2018, https://www.washingtontimes.com/news/2018/sep/13/ruth-bader-ginsburg-blasts-brett-kavanaugh-hearing/.
58. Richard Wolf, “Brett Kavanaugh coasts toward Supreme Court confirmation despite document dispute, public protest,” USA Today, September 6, 2018, https://www.usatoday.com/story/news/politics/2018/09/06/brett-kavanaugh-faces-third-day-supreme-court-confirmation-hearings/1205309002/.
Chapter Five: All Hell Breaks Loose
1. Kavanaugh’s responses to the questions for the record are quoted throughout this section. Judge Brett Kavanaugh, “Senator Chuck Grassley Questions for the Record,” Senate Judiciary Committee, September 12, 2018, https://www.judiciary.senate.gov/imo/media/doc/Kavanaugh%20Responses%20to%20Questions%20for%20the%20Record.pdf.
2. Rice v Cayetano, 528 U.S. 495 (2000).
3. Hamdan v Rumsfeld, 548 U.S. 557 (2006).
4. Ryan Grim, “Dianne Feinstein Withholding Brett Kavanaugh Document From Fellow Judiciary Committee Democrats,” The Intercept, September 12, 2018, https://theintercept.com/2018/09/12/brett-kavanaugh-confirmation-dianne-feinstein/.