Justice on Trial (Mollie Hemingway & Carrie Severino)

The heart of this book is a blow-by-blow account of Brett Kavanaugh’s appointment and Senate confirmation as a justice of the US Supreme Court. It was written while the action was still fresh in the minds of participants and observers.

The biggest challenge to confirmation was posed by a series of accusations of alleged sexual assaults and other scandalous indiscretions of Kavanaugh during his high school/ college years. These claims were ultimately rejected for lack of credible evidence despite the insistence of opponents of the nomination that several female accusers (starting with Christine Blasey Ford and going downhill from there) must be believed (in effect that Kavanaugh should disprove their claims versus expecting them to prove their claims were valid).

Between them the two co-authors interviewed over 100 people who had participated in or observed the action, including President Trump, several Supreme Court justices, high ranking White House and Department of Justice official, “dozens of senators,” Kavanaugh family members and friends, former law clerks, etc.

Justice on Trial came out on 7/9/19, only a year after Kavanaugh was nominated to fill the vacancy created by the retirement of Justice Anthony Kennedy. It was the first major book on the subject, although several others would follow. A paper-back version of Justice on Trial, published in 2020, includes an epilogue that covers, among other things, the considerably less rigorous procedures that were employed to evaluate a sexual assault that a former staffer claimed had been perpetrated on her in 1993 by then Senator Joe Biden.

Considerable historical material is presented to put the Kavanaugh confirmation in context, explaining how Senate confirmations used to be conducted on a relatively collegial basis but in recent years have grown intensely partisan because the goal has morphed from whether nominees have appropriate professional credentials to how they are likely to vote on controversies that come before the Supreme Court, e.g., are they “originalists” who will interpret and apply the Constitution and law as written or will they choose to interpret the law based on changing circumstances so as to achieve what they consider the best results? Antonin Scalia’s appointment was unanimously confirmed – Robert Bork’s appointment was defeated – Clarence Thomas’s appointment was nearly derailed by a sexual assault claim - Merrick Garland didn’t get a hearing – Neil Gorsuch was filibustered (deadlock was broken by changing the Senate rules) – Brett Kavanaugh’s ordeal – and most recently (not reported in this book) Amy Coney Barrett was confirmed on an essentially party-line vote.

There is some discussion about the future of the Supreme Court in the last chapter, e.g., will Democrats follow through on threats to “pack the Court” if they get the opportunity? This part of the discussion seems rather speculative, and perhaps unduly optimistic.

Posted on Amazon (“We lived through it”),
11/17/20.


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