Justice on Trial: The Kavanaugh Confirmation and the Future of the Supreme Court

Today’s book review is of Justice on Trial: The Kavanaugh Confirmation and the Future of the Supreme Court, by Mollie Ziegler Hemingway, Carrie Severino.

A thoughtful and well-researched book. And with Trump set to have four more years to reshape the court — even more than he already has — also quite timely.

The book shows how angry Democrats were at Kavanaugh’s confirmation hearing. This is hardly surprising. Stepping back and assessing the court since 2000 puts the vitriol into perspective. There have been numerous catastrophic setbacks for Democrats.

The first came in late 2000 when the court decided — sharply along partisan lines — the presidential election between Republican George W. Bush and Democrat Al Gore. In Bush v. Gore, five conservative justices gave Bush the victory. Having unelected judges decide a presidential election — in either direction — was sure to enrage half the country. And Democrats’ distrust of the court multiplied as Bush appointed two conservative justices, John Roberts and Samuel Alito.

Then came the second major setback. In Barack Obama’s last year in office, 2016, sitting justice Antonin Scalia (a conservative) passed away. Obama nominated centrist federal appellate judge Merrick Garland to replace Scalia. But the Republican-controlled Senate refused to hold confirmation hearings. Led by the Senate Majority Leader from Kentucky, Mitch McConnell, Republicans asserted that it was up to the Senate majority — alone — to decide whether to consider the president’s nomination. “The president nominates. The Senate confirms. The American people should have a voice, not this lame duck president out the door,” McConnell said. “All we are doing is following the long-standing tradition of not fulfilling a nomination in the middle of a presidential year.”

This refusal to confirm Garland betrayed Republicans’ core Constitutional responsibilities: the presidential prerogative to appoint justices isn’t void merely because it’s an election year. Yet it worked. Donald Trump, a Republican, was elected president several months later. And Trump, in turn, quickly nominated conservative justice Neil Gorsuch, who McConnell and Senate Republicans giddily confirmed.

Democrats seethed. And then things got worse. In 2018, Ronald Reagan-appointee Justice Anthony Kennedy resigned and Trump nominated Kavanaugh, a more conservative judge than Kennedy in key areas (including abortion). As the book shows in sordid detail, at Kavanaugh’s confirmation hearing, Christine Blasey Ford accused Kavanaugh of sexually assaulting her when they were teenagers. The whole thing was a bloodbath of he-said, she-said innuendo and accusation. The Senate confirmed Kavanaugh 50–48.

Then came yet another setback. Sitting justice Ruth Bader Ginsburg (appointed by Democrat Bill Clinton) passed away in 2020, just a few months before the presidential election. And Senate Republicans flip-flopped. Confirming a justice during a presidential election year suddenly wasn’t a problem. And in strode another conservative justice, Amy Coney Barrett, to replace Ginsburg. Justice Sonia Sotomayor, now 70, has refused to step aside for a younger justice while Joe Biden is president.

Thus, three instances of happenstance — Bush v. Gore, McConnell’s betrayal, and Ginsburg’s replacement — placed four new conservative justices on the nine-person court. Consider a simple counter-history: if Al Gore had won a few more votes in Florida, if Scalia had died a few months earlier, and if Ginsburg had retired a few years earlier, then so much would have been so different. Today the court would have seven liberals dominating its jurisprudence rather than three being marginalized.

Then came the 2024 presidential election. So from bad, to worse, to worse still.

Is it any surprise Democrats are angry?