On August 19, 2019, at the Four Seasons Hotel in Beverly Hills, the David Horowitz Freedom Center hosted a Wednesday Morning Club luncheon discussion and book signing featuring Mollie Hemingway and Carrie Severino, co-authors of the riveting new book about the Brett Kavanaugh Supreme Court confirmation titled Justice on Trial.
Freedom Center Shillman Fellow Mark Tapson moderated the discussion. Check out the fascinating video below:
David Horowitz: It’s a pleasure to be back with the Wednesday Morning Club. As you know, I moved out of state and haven’t regretted it for one second.
But it’s good to be back here.
I never met Carrie Severino before just now. I actually haven’t met Mollie Hemingway before now, either. But I sat next to Carrie, and I learned she is the head of one of the most important organizations fighting for our constitutional system, which used to be sort of quaint when people talked about defending the constitutional system. Now it’s a very serious war.
Of course, Mollie Hemingway I beheld on television for quite some time and been a great admirer of hers — because she’s so intelligent and cool in her delivery, a virtue I don’t have, unfortunately — but also because she’s not deferential to the anti-American, ignorant, delusional Left. But with perfect aplomb, she goes right in their face with the facts.
Republicans have this terrible tendency not to want to embarrass their enemies, people who hate them. Mollie will embarrass you when you come at her saying stupid and ignorant things. And I always enjoy that. I don’t enjoy the shrinking violets.
They’re going to be interrogated, as it were; interviewed by Mark Tapson, who’s a very talented screenwriter. Mark is also, just around the Center, just an all-purpose volunteer. He takes on these tasks without complaint, and I’m sure he’s going to enjoy this one in particular.
Mark also — when you get on your emails, Discover the Networks in the news, Mark is responsible for that. Discover the Networks is the, I think, most effective institution that we’ve created. It’s an encyclopedia of the Left. Very difficult to follow the Left, because they’re such pathological liars, and they’re always presenting themselves as peace activists and fighters against racism, when they are virulent racists themselves.
Mark Tapson: Thank you, David. Thank you, everyone. It was about a year ago, you all may recall, that the country was in the grip of a cultural hysteria over the Brett Kavanaugh Supreme Court confirmation hearings, a circus that served as one of the most disturbing examples of the Left’s politics of personal destruction. Actually, it didn’t so much resemble a circus as it did a riot in an insane asylum. At least a circus is entertaining. But this was shocking and outrageous and not a little scary to those of us who are concerned about the viciousness and hostility that are corroding our political discourse.
Amid all the shock and awe of the confirmation process, it was hard to maintain an objective distance from it all. But Mollie Hemingway and Carrie Severino have crafted an amazingly even-keeled, definitive insiders’ account of this incredible story, called “Justice on Trial: The Kavanaugh Confirmation and the Future of the Supreme Court.” Even if you followed this story closely, you will find this book loaded with fascinating details and information that you weren’t aware of. I don’t mean to sound like their publicist, but I think they’ve written a really important and riveting page-turner. And, I’m not kidding, for somebody like me who generally finds court stuff pretty sleep-inducing, this is actually riveting and a page-turner. So I highly recommend it.
I’m sure you’re familiar with Mollie Hemingway, who is a senior editor at The Federalist and a frequent Fox News contributor. Carrie Severino is Chief Counsel and Policy Director at the Judicial Crisis Network. And she was a clerk for Justice Clarence Thomas and was deeply involved with the promotion of Judge Kavanaugh’s confirmation from the time of his nomination. So I’m going to bring these ladies up in just a moment. And we’re going to have a conversation about the book. But we’ll also leave time for questions. So think about those. And they’ll be signing books afterward outside.
So ladies and gentlemen, please welcome Mollie Hemingway and Carrie Severino to the stage.
Congratulations on the great work, ladies. And this is the first book for both of you, right? What brought you two together to write this book?
Carrie Severino: So both Mollie and I were involved in this process in different ways during the actual confirmation. With the work I do with JCN, I was doing a lot of speaking, talking to the media about it. Just from the Kennedy retirement to the Kavanaugh confirmation alone, I think they did over 100 different TV interviews, plus a lot of radio, and talking to public, different newspapers and things. So I was working kind of on the front lines, trying to get him confirmed.
Mollie, as a journalist, was covering it. So we also were talking a lot when she was looking for information. So we both lived through it ourselves in different angles and afterwards realized this was an incredibly important event for America. It wasn’t just Brett Kavanaugh that was on trial; it was justice itself on trial, hence the name of the book. And we wanted to make sure that someone was able to tell that story and tell it accurately. Because for anyone who was watching the media and the process of this saw that not the full story was being told.
And we both, as you said — we thought we knew the whole story. When we went and we interviewed more than 100 people for the book — from the President to several justices in the Supreme Court, to senators on down — we learned so much more information. We knew there were great stories out there that needed to be told.
And as someone who had clerked for Justice Thomas, I also wanted to make sure that what happened to him wasn’t going to happen to Justice Kavanaugh. After such a brutal confirmation process, and the Left wasn’t able to stop him from getting on the court, they didn’t just pack up and go home after the Thomas confirmation. They actually engaged on a decades-long propaganda campaign to really rewrite history. And what happened, I think, if you asked most Americans today that don’t have those hearings fresh in their mind, they wouldn’t remember all of the details about how thin Anita Hill’s story was, et cetera. We wanted to make sure that the truth was told now while it’s fresh in people’s minds and that a marker was laid down so revisionist history couldn’t take root.
Mollie Hemingway: I would just add that Carrie and I are both extremely busy people in Washington, DC. And when we first started thinking about writing a book, it seemed insane. We have multiple jobs and very busy lives. But we knew it was important. And we knew that if it were to get done — and it needed to get done kind of quickly before false narratives set in — we had to do it together. And I’m really glad we did.
So we knew it was such a great story. And we also knew it was a story that says so much about what’s happening in the courts in general. So this was a particularly interesting story, but it provided the opportunity to talk about what’s been happening to the Supreme Court in recent decades, what’s been happening politically, why are people interested in the court. And so when you have an opportunity like that, you just want to make sure you take it.
Mark Tapson: Can you talk a little bit about how Brett Kavanaugh came to be the nominee in the first place? I mean, he had a very, very impressive track record. But he wasn’t what the anti-establishment Trump was looking for.
Mollie Hemingway: Right. One of the things that we found that we thought was interesting from our interviews was learning that the first time Brett Kavanaugh was brought to President Trump’s attention was the day that Antonin Scalia died, which is very much earlier than people might’ve thought he would’ve started thinking about this. When Justice Scalia died, it really shook conservatives. And that night, there was a debate, a Republican primary debate.
And so President Trump — now President Trump, then candidate Trump — was preparing for the debate and spoke with the man who would become his White House Counsel, Don McGahn. And frequently when Republicans are running for president, they say things like, I’m going to nominate someone like Clarence Thomas. And then, when the opportunity comes, they tend not to.
And what happened with Trump is he named actual specific justices that he might nominate to the court. And it really made people pay attention. Because at this point in the process, which was February 2016, people really didn’t think that Donald Trump would be conservative. That was one of the primary arguments against him: He’s not actually going to be conservative. If he’s nominated, he’s going to appoint his liberal sister to the Supreme Court.
So when he showed that he had these like specific names of people that would be good, one of the ones he thought about offering was Kavanaugh. But Kavanaugh, who had been talked about openly by scholars and observers as a likely next nominee to the court — that had been happening since 2012 — he was literally born and raised in DC, precisely the opposite of what the campaign message of Donald Trump was, where he was trying to kind of get rid the swamp and think about outsiders.
So even though he was really highly qualified and a really great nominee, they didn’t name him that night. And they also didn’t put him on what became a list of possible nominees. This was another thing that we go through in the book about how important Donald Trump’s composition of a list of potential nominees was to his eventual victory in 2016. He puts together a list of people who’d been vetted as people who would be really good nominees. When people see the quality of the candidates, they realize, okay, maybe we’re wrong about him not being conservative. And then he re-freshens that list a few months later and adds the name Neil Gorsuch. And then after he’s President, he freshens it up again and puts Kavanaugh’s name on there.
Carrie Severino: Yeah. And the other fun, you know, inside baseball story that we learned a lot more about, and that people on the outside I don’t think realize — I don’t think I realized, having worked mostly up until Trump’s era on campaigns, trying to stop Obama’s bad nominees, is the incredible role that the primary, as we call it, behind the scenes — especially Kavanaugh, who had a very devoted group of clerks who had worked for him, some of whom just left their jobs and flew across the country to try to help do whatever they could to prepare summaries of all of his opinions, and be kind of a combo law firm and PR team for the effort to just put the best foot forward possible for his nominations. That was an interesting inside story we learned.
Mark Tapson: Well, to the Left, of course, it didn’t matter who was going to be nominated, because they were just determined to undermine any nominee at all costs. But when Kavanaugh was announced, everyone from Soros-funded organizations to celebrities pulled out all the stops to demonize him, including trying to link him to the sex assault allegations against Ninth Circuit Judge Alex Kozinski, for whom he had clerked. Can you just talk about the Left’s attempts, their initial attempts, to just attack and demonize the nominee?
Mollie Hemingway: Right. I think people frequently think that things got crazy only when the sexual assault allegation came out in September. But actually, things were crazy within moments of him being nominated. Within minutes after he’s named in this White House ceremony, there is a protest that was preplanned on the steps of the Supreme Court, with preprinted signs with people saying, we will do whatever it takes to stop this nominee. Actually, prior to him being named, there were campaigns against whoever the nominee would be. You had some sitting senators say, I will vote against whoever the nominee is. That’s like precisely the opposite of what you hope for for senators who have pledged to perform their advice and consent roles in a responsible way.
And Susan Collins, who ends up being a big part of our story, she’s actually targeted before Kavanaugh is even named. And what happened is leftist groups were mailing hangers as sort of like a threatening gesture to her offices in Maine. And of course, this ends up becoming like a huge campaign, where people are threatening her staff, threatening her, physically threatening her. And she has to navigate all this while making a responsible vote, and she does.
Carrie Severino: And the Kozinski links are kind of interesting. Because from very early on in the confirmation as well, a lot of people already had on their radar, okay, there are going to be attempts — we know from looking at historical confirmations, any time there is a potential for a shift in the court, that things get crazy. You know, Robert Bork was replacing a swing vote on the Court. Clarence Thomas was replacing a very liberal justice in Thurgood Marshall. So if you’re switching things, that’s when the confirmation process gets particularly vicious.
And so we knew replacing Kennedy that was going to happen. A lot of people were worried in particular about sex assault allegations of some sort, or something having to do with that topic, especially in the area of Me Too. And so there were, in fact, rumors heard from people on the left that there was a three-part plan involving connecting him with Alex Kozinski, again for whom he had clerked. But as it happens, everyone he worked with that year, including a female intern in the office, said they didn’t see any of those issues going on that year. I mean, this is decades earlier than recently, when the allegations came out — as well as, then, potentially allegations about behavior of him with students when he was teaching in various law schools.
And so the White House already kind of had on their radar something like this could happen and could come out, and was being prepared for it. We talked to one person, in fact, who even said before the nominee was chosen, I’m going to tell you that the person who’s picked, especially if they pick a man, there’s going to be a sexual assault allegation, and it’s probably going to be something going back to high school. So unfortunately, her words became very prophetic. And I think that’s something that every nominee going forward has to just be aware of on their radar.
Mollie Hemingway: But I do think it also highlights something else, which is, you know, this was a successful nomination process, and there were many reasons why it was successful. And one of the reasons why it was successful was because this White House was kind of prepared for stuff like this to happen. You saw this difference in — when the first time the allegations came out, there were people who acted like, well, golly, we have to take this very seriously. Sounds like this federal judge, who’s been through six background checks, might’ve been living a second life as a serial rapist. And then there were the other people who said, we’ve been through this before, we saw this happen previously. We knew something would happen. Their whole strategy is delay, obstruct, cause problems. So we knew something was going to happen. And I guess this is what it is.
And that’s not to say that you don’t take allegations seriously. You should take all allegations seriously. And in fact, there’s a process for how to take allegations seriously that the Senate did not follow, which we go through in the book.
Carrie Severino: Your senator chose to ignore, in fact.
Mollie Hemingway: But I think one of the things that is interesting — while other people were wavering, or while the media were kind of in this chaotic moment, the White House actually was pretty steady. They expected something. They didn’t know what the particulars would be. They kind of tried to prepare for a couple different possibilities. And when it happened, they just kind of kept going through. And that ended up being very important for the success of the nomination. Because you’re dealing with so many other variables. But knowing that the White House was going to stay solid and stay committed to this nominee helped a great deal.
Mark Tapson: You wrote that a major source of drama during these hearings was political ambition. Can you talk about how at least a couple of senators took this opportunity for some grandstanding and what that contributed or detracted from the process?
Carrie Severino: It was funny. I mean, going into the first hearings — and you know that the members of the Judiciary Committee already included three likely presidential nominees: Amy Klobuchar, Cory Booker and Kamala Harris. And then, I remember predicting going into these hearings — I was like, you know what? There’s no way the other potential nominees are going to let these guys have this great televised opportunity people are going to watch. I bet Liz Warren shows up at these hearings. And sure enough, I walk to the hearings the first day, and who’s giving a press conference right outside but Liz Warren? It’s like a magnet for people with even higher ambitions than United States Senate. And we totally saw that in how the way the hearings played out.
The beginnings of those first hearings — again, before any of the allegations — were already one of the craziest things that people had seen in terms of Senate confirmation hearings. I don’t know how many of you waste much of your time watching CNN to watch Senate hearings very often, but it’s not normally that exciting. It’s normally, you know, a bunch of procedural back-and-forth and pretty tame stuff. But these hearings started out with Senator Harris interrupting Chairman Grassley, the Chairman of the Committee, in the middle of what was supposed to be a 10-minute opening statement that lasted for an hour. Then senators were interrupting each other, talking over each other, kind of trying to almost one-up each other for how outraged they were at this event.
And in particular, Senators Harris and Booker, I think, really covered themselves in shame in the way that they behaved. Senator Booker, in his Spartacus moment — when the confidential documents that were supposed to be committee confidential, which — the committee actually has an opportunity, there’s a whole separate section of the hearing set aside to discuss things confidentially — that’s, of course, where Senator Feinstein could’ve brought up this letter, and had had a conversation and been able to discuss it on a confidential basis the nominee. She didn’t even attend those hearings. Senator Booker, if he wanted to ask about any confidential documents, he could’ve brought it up then. He could’ve requested, as Senator Klobuchar did, to put some of these documents in the public domain and didn’t do that. Instead, he decided, I’m going to release these documents. And he went through this whole martyr complex thing of, oh, “you can kick me out of the Senate. Darn it, I’m going to release these documents.”
And my favorite part of it is that, A, they had already been released at 3:00 a.m. that morning. So he didn’t even successfully violate the rules, at least that time. Later in the day, he released a bunch of confidential documents, just to show that he meant business. But, B, the documents he released were actually helpful to Kavanaugh. The title on this email chain was really sexy. It was “racial profiling.” And he thought, oh, great, we got to get these “racial profiling” documents out there. And the content of them, however, was in the wake of 9/11, Brett Kavanaugh and some other White House employees talking about how can we protect our national security, particularly in airports? And he was actually advocating against racial profiling, even in the wake of 9/11. Let’s try to find a way we can do them without racial profiling. So you’re going, total swing and a miss.
Senator Harris had a similar thing, where she tried a Perry Mason moment. She was trying to get Justice Kavanaugh to say that he had spoken to a member at a law firm. Well, have you talked to anyone at this law firm about the Mueller investigation? He’s like, I don’t know what you’re — there’s hundreds of people at that firm. I can’t guarantee. Everyone in town’s talking about this thing. And she would just kind of, I think you know, you and I both know, who we’re talking about.
So she did what the media portrayed as a total destruction of his nomination. Turned out the next day, she had nothing. There was nothing on him. “Oh, well, I don’t know why you didn’t say that in the first place,” and then she just moved on.
So that was the kind of made-for-TV moments, I think, both of them hoped would be in campaign footage. And it turned out they were such lame attempts that they probably didn’t even make the commercials.
Mollie Hemingway: I would just like to commend you all on your uncanny ability to pick senators.
You really have done a great job here.
But it was interesting. A lot of what we did was covering the Senate process. And it was really interesting how different the two senators are viewed by their peers. And believe it or not, Senator Diane Feinstein has a very good reputation among her colleagues, or had one. And one of the problems for Republicans on the committee was they just had a hard time accepting that she would have circumvented the established process for how to handle allegations. There’s just a very clean, clear process for how to protect people who make allegations and protect the person who’s accused. She went out of her way to circumvent that process, to instead hand this letter that should’ve gone right into the process where the FBI can vet it, and instead share it with a high-profile attorney who’s known for kind of running PR campaigns on sexual harassment. And so people were just stunned that she did this. And it really caused a breakdown in that committee’s friendliness and whatnot.
And we actually tell the story about how, after the reopened hearings, there is such a breakdown in the committee that senators literally almost come to blows over it, senators — almost hitting each other because they’re so frustrated at what had happened on that committee — that had previously gotten along pretty well.
But Carrie referenced what happened with Kamala Harris, where she says — she strongly insinuates that Brett Kavanaugh is perjuring himself, and he’s kind of taken aback by what’s happening. And it was considered the one moment in the first set of the hearings where he kind of stumbled. And she had completely made up the situation. And I think it was kind of interesting to think about this as we watched these Democratic primaries, where sometimes she’ll go after someone, and it really gets a lot of media attention. But then, as people study it, they kind of realize there’s nothing there. I think she kind of showcased her lack of substance underlying her approach, which could hurt her. Well, maybe it won’t hurt her, but does not serve her well, I don’t think.
Mark Tapson: Another major source of drama was the partisan media that was whipping things up into a frenzy, and I would say an unhinged frenzy. Can you talk about the role that the media played in all this and what they contributed?
Mollie Hemingway: Right. Well, that was one of the things that was interesting to us to look into, just because anyone who was paying attention during this confirmation process could see that the media had openly chosen sides, and they were not covering things fairly. It was frustrating for Carrie and I to actually know the real story and then look at how the media had covered it. And almost every step of the way — they just did it poorly.
We tell some examples of that in the book. One that really comes to mind is how — it was NBC, I believe, that had — so Michael Avenatti, who’s another stellar Californian —
— had a client who he said claimed that Brett Kavanaugh was running a serial gang rape cartel through the streets of suburban Maryland when he was underage. And he said that there was a secondary witness who would support this view. And NBC knew that that woman, who was a supposed second witness, was like, “this is not what I’m saying at all.” And they sat on that until after his confirmation. So they knew it before the confirmation vote, and they sat on it until after. It is very hard to deal with a media environment that is this one-sided.
Or, we looked through what was happening the day that the reopened hearing happens, where Christine Blasey Ford testifies versus Brett Kavanaugh testifying. And I’m sure a lot of us watched it, it was highly watched television programming. And according to the media, everything was just amazing for Christine Blasey Ford. Everything she said was just golden and perfect. And she had the right combination of emotion and facts and whatnot. They even said that the holes in her story, which were kind of shown as she’s being asked questions about her story — when there were holes in that story, one media person said, “it actually makes her more believable.”
That’s actually not how it works.
So in our own living rooms — we also tell the story about how Melania Trump tells her husband that day, after Christine Blasey Ford testified, “you know she’s lying.” “You know that woman’s lying, don’t you?” — or something like that. And it was just interesting. Because what she was saying was probably what a lot of us were saying, or what we were hearing in our own living rooms. But it was not what you were getting in the media conversation at all.
Carrie Severino: Yeah. And we talked again to a lot of the clerks of Kavanaugh, who by this point were constantly being called by the media to talk about him, because they need to have some token voice on the other side. And they said it got so bad at a certain point that they decided there’s no point even talking to them unless it’s live TV. Because so many people were giving quotes, were saying, actually, I went to high school with him, or I’ve worked for him as a woman for years, and this is my experience. And if it was a positive thing, they just wouldn’t even print it. The only way to actually break through was to go on live TV, because then they couldn’t mute you. And that was really frustrating. Again, the one side of the story received the only coverage.
Mark Tapson: Let’s talk about Christine Blasey Ford — or, sorry, Dr. Christine Ford, as the media insisted on calling her. There’s so much to say about her, I’m not sure where to begin. What can you say about her as the lightning rod for the opposition to Kavanaugh? I mean, just generally speaking, what would you like to say about the impact?
Carrie Severino: Yeah. I mean, this is another one that we just — and we don’t take a position as to what her actual motivation is or was here. We just wanted to lay out the facts. And I think the facts illustrate that, first of all, as we were discussing with the media, there was really only one side being told. We know that she had a PR team and a legal team that had its own perspective on that. And that was pretty much the only perspective that you were able to see, in part because her entire social media presence, for example, was wiped beforehand.
And it turns out — which is not something that the media has cared to dig into too deeply. But while it was presented as, oh, she’s kind of this moderate, not really a political person; we talked to people who were familiar with her social media presence prior to that, and it turns out she was what some people describe as a crazy liberal on Facebook. And to be called a crazy liberal on Facebook is kind of putting you on that edge.
And this is a wiping that wasn’t just a, I’m stepping back off of Facebook for my personal health. This is a professional level — you can’t find her information. So it was very carefully cultivated, our view of her. We know, of course — I think everyone here could recite every list of Brett Kavanaugh’s high school friends, everything everyone wrote in his yearbook. Nobody looked at her yearbook.
And so we talked a little about the culture at Holton-Arms, which also had a big party culture and wasn’t looked into at all. I think it just is part of the imbalanced view of it. And talked to a lot of people who knew her in high school and were friends of hers in high school. People didn’t want to talk about the fact that she actually was known as a very heavy drinker, that she was known as being aggressive with boys. And it’s interesting, because those are pieces of information that we learned the White House and the Senate were fully aware of. They had lots of people calling in and coming from DC. This wasn’t just a national story; it was really a local story as well because so many of these people still live in the Maryland suburbs and are still in touch with each other and stay in contact. So they’re all calling people saying, here’s what I know.
And it was a very calculated, strategic move to say, you know what, we know how this is going to be portrayed. Anything we say negative about her, we have to be able to at least say she’s not telling the truth about this incident. But even saying that every time anyone would say, I don’t think she’s correct about that, they are portrayed as a, you know, victim hater and a rape apologist or something. So they were being so careful in not doing anything that would be perceived as attacking her, that all of this information just got shelved. And they said, we’re not going to even try to use it.
Mollie Hemingway: And I would only add to that. I mean, one of the benefits of it being a local story — and Carrie and I are both out in DC; we were able to interview a lot of people who knew the Kavanaugh family, the Blasey family. And we spoke with a lot of people. And one of the stories that we tell — well, we talked to a lot of people who kind of shared some of these details, had a more nuanced picture of the individual, that’s how we might say it. But we also tell the story of Leland Keyser, who was one of the four people who was alleged to have been at the party in question. And she — lifelong friend of Christine Blasey’s, she wanted to be supportive. She had no recollection, but she was really trying to come up with anything to help jog her memory about this incident. She felt very guilty that she wasn’t there to help her friend.
And as these weeks proceed, she starts, you know, going back through that summer, which happened to be a summer that she remembered extremely well. It was a very formative summer for her, was the year she started playing golf, which — she went on to play golf at a high level. And so she remembers it, she remembers parties, she remembers things. And she ends up losing confidence in the voracity of the story. And not only does she tell the FBI that — because remember, there’s a reopened FBI investigation after that dramatic hearing — ends up telling the FBI that she’d been pressured to change her story by mutual acquaintances of hers and Dr. Ford’s. And that in particular ends up really affecting various senators who are trying to weigh the evidence and whatnot. And when they see there’s no support for any of these allegations against Brett Kavanaugh, plus some suggestion of witness tampering and whatnot, they are very comfortable in their vote to confirm him.
Mark Tapson: You write that many things went wrong on Kavanaugh’s road to the Supreme Court. But more importantly, many things went right. What are some of those things that went right?
Carrie Severino: So some of the things that went very right — one is the fact that the Republicans controlled the Senate in the first place. In fact, the fact that Donald Trump was the President who was in office, who was perhaps uniquely temperamentally suited to defending a nomination like this.
But, you know, it’s true. We talked to so many people and said, do you think another Republican President would’ve stood by a nominee under these circumstances? And almost everyone said, yeah, I’m not so sure. And so it was really key to have someone who wasn’t going to think that bending over to the public pressure was the right way to address that.
And as a mother of toddlers, I agree. If you give in to a tantrum, you’re just going to get more of that. And I think if that nomination had been abandoned under those circumstances, then we could all look forward to that for every single Supreme Court nomination from here on out. So I think that was very important.
The fact that we had a Republican Senate — we talk about the fact that there were a lot of reasons that Bork had a hard confirmation and Scalia was unanimously confirmed, despite their similar jurisprudential outlooks. But a big one is the fact that we lost the Senate in between one and the other. And it was fascinating to talk to so many conservative organizations who were interacting with voters, who were out knocking on doors, and who already had this in mind in 2014, saying we need to win back the Senate. And if they had not done so, then we would’ve been in a very different position. We had a very slim Senate majority, but it was a Senate majority. And we had leader McConnell, who has been incredibly stalwart in not only holding the Gorsuch seat open — which really allowed Trump to take office in the first place — but also in making sure — trying to keep the senators in line with the narrowest possible margin you can imagine.
Another really influential difference in this nomination from others was the very existence of a conservative media. There’s a wonderful tweet exchange that we quote in the book from Christopher Scalia, Justice Scalia’s son, who said after this, wow, can you imagine what would’ve happened in this confirmation process if it hadn’t been for the conservative media? And then he cites places like Fox, like National Review, like The Federalist, where Mollie works; and how important that was. And it gets replied to by Robert Bork, Jr., who says, yes, I can.
So we have seen what it can look like when we abandon the field to the Left. And I think that is incredibly — it’s good to know that we have learned something and that we are now able — with the internet, with the rise of alternative media — to get some of these facts out that once upon a time would’ve been just lost.
And then, somewhat, I suppose, patting ourselves on the back, at the JCN and groups that are working on this, I feel like, as frustrating as this process was, conservatives have learned a great deal over the last few decades of how to defend a Supreme Court nomination. If this had happened in 1980, we would’ve lost this. If it happened in 1990, we may have lost the nomination. There was a team from Don McGahn, the White House Counsel, who kind of had been formed in this environment of recognizing the significance of judicial nominations, who understood that from the get-go, how key this was; who told Kavanaugh going in, you are a Trump nominee, and Trump fights. You need to fight for this.
And then, organizations, these outside groups, who are now able to stand up and make sure that their conservative members know how important this is, who can call their senators, can stand up for these things; so that people know that they’re going to be held accountable for how they vote in these kind of debates. And they can’t just kind of let go the path of least resistance. So I think the conservative movement understands judges now and is engaged in a way that we haven’t seen in recent years. And that really has helped with this issue across the board. Did I miss anything?
Mark Tapson: The subtitle of the book is “The Kavanaugh Confirmation and the Future of the Supreme Court.” You’ve already touched on it a little bit. But what is the future of the Supreme Court? Or what does the Kavanaugh confirmation say about the future of the Supreme Court?
Mollie Hemingway: We argue that it kind of depends on what happens from here on out. For one thing, you have to be very concerned about what confirmation battles like this do to affect the talent pool for the future. Are people going to be willing to put themselves through this or put their family through it? I think a lot of people might be willing to go through it themselves, but they wouldn’t be willing to have their families be subjected to what the Kavanaugh family was subjected to. So that is one issue.
One of the things that we talk about, and we wrote about this as well, is the lack of accountability for what happened. There were false allegations made against someone to destroy his reputation. And I don’t really think anyone was held accountable for it. Whether that’s the senators who violated established norms and procedures or the people who were just making up false allegations, some of whom were referred for criminal prosecution, but they were never actually prosecuted or haven’t been yet. And I don’t know if there’s any indication that they will.
Or the media, who we talked about — instead of ever realizing what they’ve done wrong, they just give each other awards and promotions for their work in this matter. So it is important that people be held accountable. And a lot of people were really happy with Senator Lindsey Graham for his speech on the day of that —
— on the day of the hearing. And it was very important and cathartic. He’s now the Chair of the Senate Judiciary Committee. So he’s in a position to hold some of these people accountable. So it’s important that he continue with the feelings that he had that day, and actually hold people accountable and make sure that these things don’t continue. I mean, Jerry Nadler over on the House side is continuing to go after Kavanaugh. And, you know, you’re not seeing as much of an outcry as you might hope.
But we sort of also talk about, most importantly, what the Supreme Court itself is doing. The entire reason why the nomination process is so political — it’s a political process, it always has been, always will be — but it’s gotten so unhinged in part because the Supreme Court has become such a much more important institution than it really should be. Its job is to determine whether a law is constitutional or not, not to redefine laws or invent rights, or to force people to accept things that they have voted against. And so the more activist role that the court takes, the less legitimate the court is, and the more you’re going to see these types of contentious battles.
On that front, though, I thought, we just went through our first term with Kavanaugh, with a conservative majority. And they seem to be doing a really good job of saying this is outside our purview, we’ll leave that for the political process, we’ll decide things appropriately. And the more it can do that, the better it is for the country. And we can actually vote for what we want, as opposed to have a legislature of nine people voting for what they want.
Carrie Severino: Nine life-tenured people who have never been elected to anything.
Mollie Hemingway: Right.
Carrie Severino: Not the way our system is designed.
Mark Tapson: Are you up for taking some questions from the audience?
Carrie Severino: Sure.
Mollie Hemingway: Absolutely.
Kurt Byron: Hi, [Kurt Byron]. I just wanted to come back to Senator Feinstein. Because when she was called out on what she did, or not doing the right thing, she didn’t seem to have a good explanation. So I’m just wondering exactly what happened, and if she ever explained her decisions at all.
Carrie Severino: Yeah.
Mollie Hemingway: It’s sensitive, actually.
Carrie Severino: Yeah. So the process that she should have followed was one that was instituted after the Thomas-Hill hearings, that actually provides a confidential way that would protect both the accuser and the nominee from this public circus but would allow the Senate to actually investigate things. So she had followed that process. Her one explanation seemed to be, but Dr. Ford wanted confidentiality. She knew that there was a process there that would’ve provided that confidentiality but somehow chose not to use it.
We did speak to some staffers who said they were concerned about the fact that she actually did —
Mollie Hemingway: — senators themselves, too.
Carrie Severino: Yes, this is true — that she seemed more willing to work with the Republicans. In fact, there was one example where — on the document debate of how many documents, of these millions of White House documents he had touched on were going to get released — she had come to a compromised position that was actually much more reasonable than the Democrats’ party line position, which was give us every single document from the entire White House, Bush White House years, regardless of whether Kavanaugh had anything to do with them.
And if they had actually come to that agreement, that would’ve potentially delayed the nomination significantly, which was really Democrats’ goal. And it sounds like her staff were the ones who pushed her off of a compromise position, said nope, it’s all or nothing, we are going to have nothing to do with them. When the committee was investigating all these various claims, those are supposed to be bipartisan investigations. They boycotted them. Her staff boycotted them completely. She seemed unaware of the fact that this was happening from what [inaudible] said. She’d say, wait, I thought we were supposed to be on these calls. And they’d be like, ex-nay on the all-cay.
So from within the Senate, it sounds like there was tension there.
Mollie Hemingway: Yeah. We heard there was just this separation between Feinstein herself and her staff. Feinstein herself was entirely reasonable, able to be worked with. And her staff would come in and just do other things, but then she wouldn’t rein the staff in. And that was actually the main source of frustration in that ante room that we talked about, where people are actually almost coming to blows, was this feeling that you’d make an agreement with Feinstein, and then her staff would do something differently. And she’s the ranking member, she’s the top Democrat. So she is the senator that you’re supposed to work with. And so it was just a huge, huge problem for the other senators and some of their staff.
Unidentified Audience Member: Yes, hello. Can you talk about the hiring of the Arizona prosecutor, Rachel Mitchell —
Carrie Severino: Yeah.
Mollie Hemingway: Hey.
Unidentified Audience Member: — to question Blasey Ford, the behind-the-scenes on that? And also, some of us thought her questioning was quite curious. Were we wrong about that, too?
Mollie Hemingway: Yes. You’re wrong. Sorry. No, I loved talking about her.
Carrie Severino: She’s great.
Mollie Hemingway: We really enjoyed talking about her. And most of the people that we interviewed for the book, they did it on background, which means that you can use the information, but you can’t attribute it to them. And she was one of the people that we spoke to on the record, which was great. And she was very helpful. She was just a very competent person.
And the story about how she gets hired — okay. So when the allegations break loose, you have certain people in the Senate who say these allegations have no substance. let’s just continue on and vote on the nominee, get him out of committee, and then the Senate as a whole can vote on him. There were other people on the committee who say, oh, someone’s made an allegation, we need to shut everything down and have a live national hearing, where she gets to tell her story. So even though McConnell and Grassley did not want to have an additional hearing, other people on the committee — and a lot of other people on the committee — actually wanted to have a hearing.
So once you’re going to have a hearing, people with an institutional memory of remembering how the Clarence Thomas situation goes, realize it’s going to be something where the media are going to say whatever questions are asked of her by Republican senators are the worst questions that have ever been asked, and they’re horrible, and they’re going after a victim and whatnot.
So they pretty quickly come up with an idea to hire someone who could handle questioning on behalf of the committee, so that it’ll be gentle. And they end up interviewing quite a few people, many of whom kind of don’t want to do it for one reason or another. Their firm won’t let them, or they’re afraid —
Carrie Severino: A lot of law firms vetoed having anything to do with it, which is frustrating.
Mollie Hemingway: And I can’t remember exactly how Rachel Mitchell’s name comes up. But someone recommends her, because she’s the nation’s foremost trainer on how to ask questions of people who are alleging sex crimes. This is a very difficult thing to do in order to — she works in sex crimes prosecution. So before you know that you’re going to prosecute something, you really need to make sure you have a case. But in order to make sure you have a case, you have to do very important questioning, forensic questioning, it’s called. And this is a very complicated process, and she’s like the nation’s foremost expert on how to do this.
So the Republicans interview her. And she does say at the outset, if you are looking for a bulldog, that’s not me. Like I have a job to go back to in Arizona. I’m someone who trains people with particular attention and care for victims of sex crimes. Like I’m not going to blow up my reputation to do something partisan or whatnot.
Carrie Severino: To score some points, yeah.
Mollie Hemingway: So she was very clear about what she was going to do. And then, the day before, she finds out that it’s five-minute increments. Which is totally not how forensic interviews are supposed to go. They’re supposed to be basically pretty open-ended. You tell the story one way, and then you tell it in reverse, and you ask different questions, where the alleged victim can just kind of describe what’s going on. And then you sort of probe inconsistencies, but you do it in a very gentle type way. Well, you can’t do this in five-minute increments.
But she still was able to bring out so many of the inconsistencies in Christine Blasey Ford’s story. You might remember how the reason why everything was delayed for two weeks was because Christine Blasey Ford’s attorneys had claimed that she was terrified of flying. So she asks, so how did you get here? I flew. Now, you were out here a couple weeks ago. How did you get here then? I flew. But you don’t like to fly? I can’t remember exactly how the questioning goes. And she’s like, you know, it’s horrible. I have to have my friends support me in order to get flying. I see here it says you work for an Australian firm. Oh yes, but I could never fly there. Okay, your resume also says that your hobby is international surf travel.
So she establishes that she’s willing to fly over the Pacific, you know, large stretches, or do island hopping in planes and whatnot, and just showing that, okay, this was a claim that was made; this is not true. Or, do you remember the event in question? It’s seared in my memory. You know, I have this very specific memory that it’s Brett Kavanaugh. Okay, where was it? Don’t know. How’d you get there? Don’t know. Where’d you come from? I don’t know.
So just being able to ask those questions was still very helpful. And while it wasn’t that cathartic thing that people might’ve wanted of someone going for the jugular, what was actually in play were those votes on the Senate Judiciary Committee which were not secure. And it wasn’t just Jeff Flake. People like to be angry at him, but he was not the only one — but also senators outside of the committee who weren’t sure how they were going to vote.
And Rachel Mitchell gives a presentation to all of the senators afterward, all the Republican senators. And she makes the case of what they learned from the questioning. And she says, not only is there not enough for a conviction here; there’s not enough for a search warrant. Like there’s nothing to support this. And so that was persuasive to the people who really were trying to be open minded and weigh the evidence seriously. And some of the senators that we spoke to said that was probably the thing that had the most impact on their eventual vote.
So yes, you should like Rachel Mitchell if you like Brett Kavanaugh.
Unidentified Audience Member: In the final chapter of your book, you talk about the legitimacy of the Court. In recent weeks, there was a brief filed by five Democratic senators with the Supreme Court in connection with the New York law on gun control. I’d like to read you the last paragraph of their brief and get your comment. “The Supreme Court is not well, and the people know it. Perhaps the Court can heal itself before the public demands it be restructured in order to reduce the influence of politics, particularly on the urgent issue of gun control. A nation desperately needs it to heal.” What do you make of that?
Mollie Hemingway: The next line after that was —
Unidentified Audience Member: That’s the last paragraph.
Mollie Hemingway: No, nice Supreme Court you’ve got there. Would be a shame if anything happened to it.
Carrie Severino: Right.
Mollie Hemingway: I mean, it was a threatening note.
Carrie Severino: Yeah. I mean, that was a brief signed by Senator Whitehouse, who’s one of my personal favorite senators on the Judiciary Committee. But yeah, it was so — as a clerk for Justice Thomas, I read a lot of amicus briefs in my time. And that is a really outstanding and unique piece of work there to have senators willing to sign onto something that is so boldly threatening the Court. These are the same people who have been actively calling for the Court to have an increased number of justices. They know that would lead to a political spiral on the Court. And they know that particularly the Chief Justice knows that. I think that’s exactly who that brief was aimed at.
Because even back when FDR did court packing, the received wisdom, which actually has been called into question by some historians, is that he ultimately succeeded not by adding justices to the Court, but by getting the justices so scared of adding people to the Court that they switched their votes to instead support his New Deal policies.
I think that is the goal of many of these senators who are talking about court packing, is they’re hoping they can convince Chief Justice Roberts to then shift some of his votes, so that there wouldn’t be anything that could upset them about it. I think that’s exactly what that’s doing. Ironically, of course, that is the most political move he could make. If a justice is voting on a case because they’re looking at the political consequences, whether it’s because they’re trying to favor their own party or they’re trying to favor the party that they think has a gun to their head — either way, that is a political vote. So I think it’s almost Orwellian to say, oh, we wouldn’t want anything to look political here, so we’d better do what we say.
The positive side of that is, I hope, that was such an overstep and such an egregious brief, and I think so many people saw straight through it, that that will hopefully have the exact opposite effect on the Chief Justice. And I’m certain it would on many of the other justices in the Court. I think there’s even a chance that there’s people like Justice Ginsberg, who are going okay, guys, this — she has at least — I don’t agree with many things that Justice Ginsberg says, but she said, guys, “the Court’s great at nine.” And she has stood up for Justice Kavanaugh and Justice Gorsuch when people have said they’re nothing but partisan hacks. And she says no, these guys are smart, they’re good people. So I think that will have the opposite effect. It might rally his base, but I think at the end of the day, it just takes the mask off of what we all kind of knew was their goal.
Mollie Hemingway: Yeah. Justice Ginsberg, who is remarkably spry based on this interview I just watched with Nina Totenberg — she seems 20 years younger than Joe Biden, even though she’s older than him.
But she did this interview where she said, if you’re worried about the politicization of the Court, packing the Court would be the most political thing you could do, and it’s so obvious to everybody. That particular case that that brief was filed on, if it makes a difference, is a case where it’s about whether legal, law-abiding gun owners in New York City can transport their weapons from a secure location to a secure location. And it is widely viewed as a law that will be overturned as violating the Constitution. It’s such a bad law that even people who oppose gun rights were begging New York City to get rid of it. Because they knew that if it went to the Supreme Court, the Supreme Court would have no option other than to rule it unconstitutional. And that could really affect a lot of gun legislation throughout the country.
So I think in a way, too, this was just a last-ditch, extreme effort, because they’ve got such a horrible case they’re dealing with. So sometimes when people behave this way, it’s a sign of their weakness rather than their strength.
Carrie Severino: Desperation.
Michael Finch: Okay. Before the book signing, we’re going to try to get two quick questions here. And then Lisa will get the last question.
Unidentified Audience Member: So those of us who are normal citizens, and we watch TV, and we see people on the left making, over and over again, extremely egregious, unfounded statements, do you think those people live in a bubble and actually believe what they’re saying? Or are they just cynical and just saying whatever they need to do, you know, the means justifies the ends? I’m just curious about your opinions, because you meet a lot of these people.
Mollie Hemingway: It’s actually a really good question I was just thinking about last week. Because I was reading — the New York Times had an all-hands meeting, where the editor was talking about that they’d built their newsroom around the Russia story. And then Mueller came out with no charges, so then they kind of figured out they’d come up with this racism story to define things. And it was this rare moment where you’re like — I was just confused. Did they actually believe the Russia story? He made it sound like they were surprised that there was no evidence of treasonous collusion with Russia to steal the 2016 election. And I sort of thought that they were pretending to believe it. Because it was so ludicrous that anyone who was mildly thoughtful would see that that wasn’t real. But the way he said it made me wonder, did they actually believe it? I don’t know. I don’t think so, but maybe. Or maybe you start going down a road, and then there’s no way out from that. So you start saying something crazy, and then you’re locked in. And then you’re looking for evidence to support it.
When it comes to the Kavanaugh situation, I think what was most disconcerting was just to watch people who should know better, regardless of their particular political views, about presumption of innocence and rule of law. These are some of the few things that we’re supposed to have in common. And you would hope that people on the left would understand that if people don’t have presumption of innocence that that would be an extremely bad situation for groups they care about, whatever that group might be. And to see that people didn’t have that was a bit terrifying, I think. But maybe it’s just mostly that we’re in a mob era, where people can get carried away and not think things through.
Michael Finch: Okay. Final question.
Unidentified Audience Member: Thank you. My daughter interned for Judge Kozinski, who’s a dear friend of our family. And he’s usually at these events, but I’m actually glad he’s not here today. He’s in Hawaii. And I asked her if she ever heard or saw anything. And she said he pulled her ponytail once. He had over 500 interns and clerks. And, you know, a handful destroyed his reputation. I put that as an aside, because I thought it was egregious. And I didn’t think anyone really came to his rescue, sadly, which may’ve been a precursor to the Kavanaugh debacle, you know, the feeding of that.
My question to you is, I saw it with my daughter, who was an attorney but a disaffected Republican. And she became a decline-to-state, no party preference. And then, after the Kavanaugh, she was so frightened and aghast and furious and crazy that she became a registered Republican again. She wears MAGA hats, which we are frightened in Beverly Hills for her, because she’s about 107 pounds wet out of a pool. So, you know, she’s feisty, she’s frustrated. And a lot of her friends are coming back to the fold. Are you seeing this phenomenon? And I actually stopped talking to quite a few people who are actually attorneys from top 15 law schools, because they believed Christine Blasey Ford and thought that no evidence meant that Kavanaugh’s actually guilty. So I was so shocked by this and disgusted that I actually dropped people. Because I felt that we don’t have the same value system. We don’t believe in American values.
So I’m just asking if you’re seeing some people come back to the fold, if you’re seeing any awakening in our group that we’re really under siege; we’re at war.
Carrie Severino: Yeah. That’s one thing that leader McConnell said after this. He said basically, thanks to the Democrats for getting our base excited, because we couldn’t figure out how to do it, and now they’re all really on fire.
And it did really happen. We talked to some of the groups like SBA List, for example, who was out from the beginning — before the process, really — and through it, asking people, when they were talking to people indoors. And they noticed that particularly in Missouri, which was a key state where, in fact, Claire McCaskill did lose after voting against Kavanaugh. They saw the numbers —
Mollie Hemingway: She’s on record saying —
Carrie Severino: And she’s on record saying she thinks that’s why. Their numbers show exactly the same thing, that ironically, before the allegations, people were more ho-hum. And then afterwards, they were all just on fire and no, no, this is wrong. And it wasn’t the only group we talked to. Americans for Prosperity said this is the most ginned up we’ve seen people since the Obamacare battle, and that is really saying something — that people were working in the phone banks until 3:00 a.m. so they could get in all the calls to Alaska for Senator Murkowski. Those ones didn’t end up working as well as we had hoped. But it was people who just were so outraged, and mothers who said, I don’t want my son to grow up in a world where you can just be accused.
Unfortunately, I don’t think the presumption of innocence is entirely gone; I think it’s only gone for conservatives. Because as a Virginian — and we just saw, immediately following on the heels of this, suddenly, you know, Justin Fairfax, our state Attorney General, was accused of, I think, something that had a lot more — I can’t speak to all of the weight of the evidence, but there seemed to be a lot more evidence for his allegations than Kavanaugh’s. And people were willing to give him a lot of presumption of innocence in that issue. And he’s still, of course, in office.
So I think it’s frustrating. Because it’s really a loss for the rule of law itself when we’re willing to apply different standards to one party versus another. But I think a lot of Americans recognize that. And they see that that’s not the kind of country that we want to live in.
So that gives us a lot of hope. Because again, it’s not about whether this might happen or could happen in America. It happened. And the only question is whether we let it happen again.
Mollie Hemingway: I just want to add that at The Federalist, which is my publication, we did run a few pieces from people who had been Never Trump all the way through 2018 and said that the Kavanaugh moment totally radicalized them. I believe one of our pieces was headlined like, I was a Never Trumper. After Kavanaugh, where’s my MAGA hat? So it’s definitely not just your daughter.
But I think it’s actually kind of what the story that we tell is all about in general, which is what’s been happening on the right is you have these principles and ideas, and a feeling among far too many people that people aren’t willing to fight for them. And that kind of explains what happened in the Trump moment. And we go through how it is part of this confirmation process as well. Brett Kavanaugh is a good friend of George W. Bush’s. He worked for him for years. When he marries his wife, Ashley, who was George W. Bush’s personal secretary, the Bushes host their rehearsal dinner, essentially, on the White House lawn. They couldn’t be more Bushy if they tried.
And yet, going through this — and he has all the right credentials and all the right principles and all the right ideas. And he worked for Ken Starr’s Whitewater investigation, all this kind of stuff. And then, when it comes down to it, it’s essentially — it ends up coming down to, are you willing to fight? And that’s that moment where Christine Blasey Ford testifies, everybody in DC says it’s over.
We tell the story about a senator going to Susan Collins and saying, how about you and I go to the White House and get them to pull the nomination? And Susan Collins says, I’d like to hear from Brett Kavanaugh first. And then, when he comes out and just fights, at that point, it’s not fighting for a Supreme Court seat. It’s just fighting for rule of law, presumption of innocence, his name, his ability to be around his children. That’s what completely changes the day.
And so I think what’s nice is when you see a combination of principles and fight. And maybe that’s what we’re learning as a movement.