Two summers ago, special interest groups spent the dog days of August conspiring to block the confirmation of Judge Brett Kavanaugh to a seat on the United States Supreme Court.
Advocacy groups raised seven-figure war chests for what the New York Times referred to as “the mother of all Supreme Court battles,” one which allegedly posed “an existential threat to abortion rights, the Affordable Care Act and checks on presidential power.”
If their hyperbolic warnings sounded familiar, they should have. Similarly dire predictions were made about nearly every Republican nominee to the Supreme Court in modern times. Indeed, many of the leaders of the Stop Kavanaugh movement were veterans of such earlier court battles.
Not surprisingly, then, the Stop Kavanaugh playbook strongly resembled the 1991 playbook that activists used to try to prevent the confirmation of Justice Clarence Thomas.
As in 1991, activists protested on the steps of the Supreme Court and in the halls of Congress, trying mightily to convince the public that the only thing standing between them and their civil rights was this nominee.
They sent threatening messages to undecided Senators. And, this time, they even sent thousands of coat hangers to Senator Susan Collins (R-ME), a pro-choice centrist, suggesting that Kavanaugh’s confirmation would lead women to seek dangerous “back-alley” abortions.
When Judiciary Committee hearings failed to convince enough Senators to vote against the highly qualified nominee, and confirmation was all but assured, activists threw a final Hail Mary pass: an 11th hour charge of alleged sexual misconduct, committed long ago and corroborated by no one.
If this act of desperation seemed familiar, it’s because we’d seen this movie before. In 1991, at the conclusion of Judiciary Committee hearings, activists leaked an unsubstantiated claim by Professor Anita Hill that Thomas had made inappropriate comments to her when she worked for him at the Department of Education and even after she followed him to the Equal Employment Opportunity Commission.
In both cases, opponents of the nominee had known of the allegation much earlier but had saved it for maximum political impact.
And in both cases, the allegations seemed incongruous with the nominees’ character. (Both Thomas and Kavanaugh had an abundance of female former colleagues who supported their nominations; both had been generous mentors to female subordinates; for his part, Thomas was known as one of the only officials in the Reagan Administration to have supported interpreting federal civil rights law to prohibit workplace sexual harassment.)
Perhaps not surprisingly, both accusers were counseled by Democratic operative Ricki Seidman.
In both cases, Democrats had promised the accusers anonymity but quickly abandoned such promises in the name of political expedience.
In both cases, the charges failed to hold up to rigorous scrutiny. Ultimately, both men were confirmed to the Supreme Court.
One might think, from these two debacles, that activists would give up the smear tactics against qualified and honorable nominees.
But we all know the chances of that are slim.
Already, activists have warned that, if a vacancy occurs before the end of the year, they will protest anyone that President Trump nominates. (Of course, no justice has indicated an intent to retire. But as the unexpected death of Justice Antonin Scalia during the last election cycle reminds us, justices don’t always get to orchestrate their own departures.)
In fact, they have made clear that they will fight any Republican nomination to the Supreme Court no matter when that occurs.
The reason is clear: progressives view the Court as a “super-legislature,” rather than as a neutral arbiter of the law. And so they will oppose any nominee who does not have an explicit record of support for their favorite causes or who is not willing to legislate particular policy outcomes from the bench.
Should President Trump win re-election, he is likely to have an opportunity to select a constitutionalist replacement for liberal icon Ruth Bader Ginsburg. If that happens, get ready for a battle royale. The left has already falsely accused one Supreme Court Justice of sexual harassment and another of sexual assault. What could possibly be next?
Ahead of the two-year anniversary of Kavanaugh’s confirmation, #IWFReads Book Club will read Justice on Trial: The Kavanaugh Confirmation and the Future of the Supreme Court.