Resistance (At All Costs)

by Kimberley Strassel

  Schumer’s promise wasn’t enough for the Resistance, which in August made it clear that Senate jobs were on the line. By the end of that month, Democrats were raring to exit Washington and hit the midterm campaign trail. McConnell said nobody was leaving until the Senate cleared fifteen Trump judicial picks. Schumer made a deal to fast-track the confirmations, so that his people could get to their states.

  The Trump haters exploded. Brian Fallon, the head of Demand Justice, went on the warpath. “Mitch McConnell is in the middle of stealing the federal courts for conservatives, and Democrats continue to bring a butter knife to a gunfight,” he raged in a statement. “Democrats should be resisting Trump’s judge picks at every turn, not agreeing to fast-track them, as happened this week. It is hard to think of a more pathetic surrender heading into the Kavanaugh hearings.” Markos Moulitsas of the Daily Kos declared: “Democrats need a new Senate leader.” Vox suggested Schumer’s job was at risk, referencing a New York telephone town hall in which his constituents had “argued that Schumer lacked the teeth needed to truly take on the Republicans.” Yet other liberal groups sent the message that all Democrats were expected to get tougher. As a Huffington Post story noted: “It would have taken only one Democratic senator to say ‘no’ to letting the nominees through this week, but none did.”

  The problem for Schumer and Democrats (as even some liberal commentators acknowledged) was that there was nothing they could do procedurally to stop a Kavanaugh vote. They’d exploded the filibuster for Supreme Court nominees in the Gorsuch fight, and McConnell had a 51-senator majority. Schumer had only two courses available to him. The first: Attempt to string out the Kavanaugh confirmation process past the November midterm elections. Democrats hoped to retake the Senate majority and put any court nominations on ice until they could win back the White House. This strategy would have the additional benefit of sparing Schumer’s red-state Democratic senators from having to take a tough vote on Kavanaugh prior to their reelections. The second: Pressure at least a couple of Senate Republicans to abandon the nominee, denying him even 50 votes.

  Democrats moved immediately to slow the process, demanding millions of documents from Kavanaugh’s tenure as a staff secretary in the George W. Bush White House and from his time working for independent counsel Ken Starr. Schumer said he wouldn’t even meet with the nominee until his document demands were satisfied.

  This was unheard of. Reasonable document requests usually bear only on the duties of a Supreme Court justice. Kavanaugh’s job as White House staff secretary made him the gatekeeper of a mountain of documents—few of which were created by him and even fewer that would bear on his qualifications to the high court. The Democratic demands were far in excess of anything administrations had been asked to provide for former nominees. Notably, while the Obama team had turned over some of Kagan’s records from her time in the Obama White House, then–Senate Judiciary head Pat Leahy had not requested any documents from her time at the Obama Justice Department. Why? They were covered by executive privilege. But Democrats wanted to ignore that standard when it came to Kavanaugh.

  When Republicans balked at the enormity of the request, Democrats started accusing the GOP of “rushing” the process and engaging in a Kavanaugh “cover-up.” They blasted the GOP timeline, which was aimed at getting Kavanaugh confirmed in time for the Supreme Court’s new term on October 1, 2018. That timeline was hardly a rush, providing more than 80 days for the confirmation process. By contrast, 60 to 70 days was the norm for previous nominees. But in mid-August, Schumer declared: “We are seeing layer after layer of unprecedented secrecy in what is quickly becoming the least transparent nominations process in history.”

  It meanwhile took less than a week after Trump named Kavanaugh for the Resistance to float its first smears against him—an early effort to make him too toxic for Republican support. It says something that the best the Trump haters could come up with was a claim of guilt by association. Kavanaugh, twenty-seven years earlier, had clerked for federal Judge Alex Kozinski on the Ninth Circuit Court of Appeals. Kozinski retired in December 2017 after several women accused him of harassing behavior. Resisters demanded that Senate Democrats grill Kavanaugh on whether he had any knowledge of these events. Their problem: He didn’t. The Trump White House immediately issued a statement saying that prior to public reports in 2017 about Kozinski, “Judge Kavanaugh had never heard any allegations of sexual misconduct or sexual harassment by Judge Kozinski.” And some eighteen of Kavanaugh’s former female clerks signed a letter stating their “uniformly positive experiences with the Judge as a boss on issues of gender and equality in the workplace.” The issue largely died, but was an early warning that the left (including the media) would abandon all its standards in the Kavanaugh fight and would be willing to level the cheapest and most scurrilous of accusations.

  Democrats were ultimately provided more than half a million pages about Kavanaugh’s record—more than had been provided for the past five Supreme Court nominees combined. They also had 17,000 pages of material that Kavanaugh provided in response to the committee’s questionnaire. None of this counted for anything in the end. From the first minute of Kavanaugh’s September 4 hearing, Democrats engaged in never-before-seen theatrics for the cameras—eager to please the progressive base. As we at the WSJ editorial page wrote: “Judiciary Chairman Chuck Grassley couldn’t finish his first sentence before California Democrat Kamala Harris interrupted to demand a hearing delay. Democrats continued to speak over the Chairman even after they were ruled out of order to the jeers of protestors who had to be removed from the hearing room. Democrats interrupted 44 times in the first hour, part of what NBC reported as a ‘plotted, coordinated strategy’ organized by Minority Leader Chuck Schumer over the weekend.” Washington isn’t the classiest place, but this was undignified to an extreme.

  Histrionics over, Democrats moved to bashing the nominee. Ms. Harris claimed he would not be loyal “to the people of the United States.” Democrats also claimed Trump had chosen Kavanaugh only to somehow save him from a Mueller indictment. This made no sense, since existing DOJ guidelines don’t even allow indictments of a sitting president. They claimed he’d overturn Supreme Court precedents willy-nilly, that he’d act as a corporate stooge, and that he’d unleash a new wave of gun violence. The drama went on for four excruciating days.

  It was capped by New Jersey Democrat Cory Booker’s declaration that he intended to violate strict Senate rules and release confidential documents. Senators had been allowed to review some documents that had been marked “Confidential” and not made available to the public. Booker late in the hearings referred to one of these—an e-mail that Kavanaugh had sent while he was in Bush’s White House counsel office that had the subject line “Racial Profiling.” Booker went on a rant, claiming that the “system is rigged” and declaring he would release the documents in defiance of committee rules. “This is about the closest I’ll probably ever have in my life to an ‘I am Spartacus’ moment,” he dramatically declared.

  Embarrassingly for Booker, the documents were already public at the time he made his statement. The Judiciary Committee had pulled an all-nighter to honor Booker’s earlier request to get the e-mail out. Equally embarrassing, the e-mail was much ado about zip. In response to an e-mail thread discussing the legal question of racial profiling after the 9/11 terror attack, Kavanaugh had responded that he “generally” favored “effective security measures that are race neutral.” Shocker.

  * * *

  Kavanaugh more than survived his hearings; he got through without any serious scratch. The Resistance nonetheless ramped up pressure campaigns on individual Republican senators, looking to erode Kavanaugh support. A top target was Susan Collins, a Republican moderate from Maine, a champion of abortion rights. Democratic complaints that Kavanaugh would overthrow Roe v. Wade were always aimed at Collins and fellow female Republican Senator Lisa Murkowski from Alaska.

  But in August, Kavanaugh sat down with Collins, in
a long meeting that the Maine senator described as a “good, thorough discussion.” And Collins directly addressed Roe v. Wade, saying she’d been reassured. “He said that he agreed with what [Chief] Justice [John] Roberts said at his nomination hearing, in which he said it was settled law,” reported Collins. The Resistance claimed Kavanaugh was lying and set about brutally changing Collins’s mind.

  Collins would later report that activists started leaving “out-of-state voicemails” on “the answering machines” of her state offices. Some were criminal. “In one case—and we are going to turn this over to the police, but unfortunately, of course, the person didn’t leave a name or number—but they actually threatened to rape one of my young female staffers,” Collins told the WSJ.

  As the WSJ editorial page reported in mid-September:

  The Senator’s office also has been receiving coat hangers in the mail, a grisly attempt to insinuate that a Justice Kavanaugh would restrict abortion rights. About 3,000 have arrived so far. “I am pleased to say,” Ms. Collins says with a small chuckle, “we had a group that has a thrift shop that helps low-income women ask us for 300 of the hangers. So at least 300 of them have gone to a very good cause.”

  This intimidation campaign culminated in an out-and-out attempt to bribe or coerce Collins. In September, a Resistance crowdfunding website asked donors to make a financial pledge to help give $1 million to Collins’s 2020 opponent and to provide their credit card numbers. But the site explained: “Your card will only be charged if Senator Susan Collins votes for Kavanaugh’s confirmation to the Supreme Court.” In other words, the site was making clear that Ms. Collins would be able to avoid a well-funded opponent only if she voted the way they wanted. As of mid-September, more than 37,000 people had donated more than $1 million.

  Again, as we as the WSJ wrote at the time: “Federal law defines the crime of bribery as ‘corruptly’ offering ‘anything of value’ to a public official, including a Member of Congress, with the intent to ‘influence any official act.’ The crowdfunders in this case are offering something of value—withholding funds from her opponent—in return for a Supreme Court confirmation vote.” Collins told us that two attorneys had expressed their view to her that this was a clear violation of the federal bribery law; a third had said it was extortion. The senator, to her credit, was unbowed. In response to all this, she said: “I’m going to do what I think is right. I am going to cast my vote—as I have done on all of the other Supreme Court nominees that I’ve been called upon to consider—based on his qualifications, his character and integrity, judicial temperament, his record, and his respect for the rule of law and fidelity to the Constitution.”

  Again, Democrats had broken new and unseemly ground in their attempts to harass a senator into political compliance. The Senate has long been clubbish—which can sometimes have a downside. The upside is that the body has generally adhered to a higher standard of collegiality and respect than the House. The Collins episode was notable for how few of her Democratic colleagues—even women—condemned these tactics. Democrats claim to want an environment of greater respect for women but encouraged an environment that led to attacks on Collins and sat back as political activists insulted a long-standing female senator in the foulest of terms. Try to imagine the uproar if a single Republican ever engaged in similar behavior.

  * * *

  In October 1991, news broke that a woman named Anita Hill had made allegations of sexual harassment against then–Supreme Court nominee Clarence Thomas. The allegations came but days before the Senate was scheduled to vote on his nomination. Many of her accusations were preposterous, and Pennsylvania Senator Arlen Specter would later write in his 2000 memoir that even Biden had admitted to him: “It was clear to me from the way she was answering the questions, [Hill] was lying” about a key part of her testimony.

  Conservatives would later draw a comparison between this late hit on Thomas with the late hit on Kavanaugh. But as bad as the left’s character assassination of Thomas was, its ambush of Kavanaugh was worse. And it brought the Senate confirmation process to a low that few could have ever imagined.

  Remember the context: By mid-September, Kavanaugh was through his hearings and Democrats had failed to lay a glove on him. Republican senators seemed unmoved by the attacks. Yet Democrats as a whole remained under enormous political pressure to derail the nomination. And individual senators had personal motivations to take down the Republican nominee. Judiciary members like Harris and Booker were already gearing up for presidential runs and wanted to use Kavanaugh to prove their progressive bona fides. California Judiciary ranking member Dianne Feinstein was in the middle of a primary fight with a progressive opponent who claimed she was too soft. Democrats decided that if they couldn’t destroy Kavanaugh on the question of legal competence, they would destroy him as a person.

  The day before Grassley intended to mark up the Kavanaugh nomination to move it, Feinstein suddenly announced that she had “information.” It was the slimiest of moves—an anonymous and ominous threat. “I have received information from an individual concerning the nomination of Brett Kavanaugh,” said Feinstein in a statement. “That individual strongly requested confidentiality, declined to come forward or press the matter further, and I have honored that decision. I have, however, referred the matter to federal investigative authorities.” Grassley immediately noted that Feinstein had failed to share the information with him. But someone had shared it with the media. News reports began claiming that Feinstein had a letter from a woman alleging Kavanaugh had engaged in sexual misconduct with her…in high school.

  Everything about Feinstein’s late ambush was improper. It turned out Feinstein had had the letter since summer. She hadn’t sent it to the FBI, and she hadn’t shared it with Republican colleagues. She also hadn’t brought up the allegations when she met with Kavanaugh. Nor had she aired the issue during his official hearings. She instead waited until the formalities were over, then dropped it to derail his committee vote.

  Within four days, liberal reporters had everything: Christine Blasey Ford claimed that when she was fifteen and Kavanaugh was seventeen, he and a friend pushed her into a bedroom at a party, held her down, covered her mouth, and groped her. She said she managed to escape.

  Nothing about Blasey Ford’s story added up. Kavanaugh denied it unequivocally. Reporters identified the “male friend,” Mark Judge, who said he had no memory of the event. Nor did the fourth person Blasey Ford claimed to have been at the party—her good friend Leland Keyser. Blasey Ford, by her own admission, told nobody about this supposedly earth-shattering event until 2012—when she related the story during couples therapy. But even that was problematic. The therapist’s notes said Blasey Ford claimed to have been assailed by four men, not two. Blasey Ford claimed the therapist was mistaken. The therapist’s notes also never mentioned Kavanaugh’s name.

  As ugly as was the Thomas sabotage, he had at least been hit with specific allegations that he could refute. Blasey Ford’s story was conveniently undisputable. She could not remember when the assault had happened. She could not remember in whose home she had been. She could not remember how she got there, or how she got home. All of this made it impossible for Kavanaugh to provide evidence to the contrary.

  Democrats and the entire media establishment instantly erected a protective wall around Blasey Ford: She was a woman, a #MeToo confessor, and anyone who doubted her claims would be decried as a misogynist and an enabler of sexual harassment. Yet Blasey Ford’s actions were hardly those of a political innocent. In the run-up to the accusation, she had dismantled all her social media, making it impossible to look back at her prior political views. She also retained as her lawyer Debra Katz, a notorious Democratic activist and Hillary supporter.

  Democrats nonetheless got their desired outcome. Republicans almost immediately agreed to delay a confirmation vote and schedule another public hearing. We at the Journal editorial page warned that the goal was to force “Mr. Kavanaugh into looking
defensive or angry, and to portray Republicans as anti-women. Odds are it will be a circus.” We were wrong in that last regard. It was worse than a circus.

  Having successfully delayed the Judiciary Committee vote, Democrats turned to delaying it even further. Schumer insisted that nothing happen until the FBI had thoroughly investigated the claims. It was an inappropriate request, as Schumer well understood. The FBI does do background checks, and Kavanaugh had been subjected to them over the years. But their purpose is simply to interview people about the character and qualifications of a nominee. The FBI doesn’t make judgments about the statements it receives; it compiles information and sends it to elected officials. It’s up to those officials to follow up.

  The FBI most certainly doesn’t exist to conduct criminal investigations into nominees, in particular over allegations that concern state (not federal) law. This was an abdication of the Senate’s constitutional duty to make the final call on the fitness of judicial nominees. Democrats were putting the Bureau in an untenable position, further politicizing it at a time when it was already under fire for its actions during the 2016 election. They were demanding that unelected bureaucrats at the FBI act as political judges in a partisan dispute—a role no American should want law enforcement to have in judicial nominations.

  In any event, the Judiciary majority staff had already moved to investigate, and it had as much power as the FBI. It was doing the right thing, offering Blasey Ford an opportunity to testify in private or in public, with the goal of providing enough information for senators to judge her story and then vote. Their problem was that Blasey Ford did not want to cooperate. Senate Republicans immediately requested that she and Kavanaugh appear before the committee. Kavanaugh said he’d appear anywhere, anytime. But Blasey Ford’s lawyers kept giving Republicans the runaround, refusing to say if they’d show up. At one point, they claimed she had a fear of confined spaces, including airplanes, and so would need to drive across the country—which would push any testimony off for longer. Democratic staffers also refused to work with their Republican counterparts on the scheduling of calls to witnesses. All of this seemed purposely designed to delay proceedings.