"Justice on Trial": Kirby Center Interview With Mollie Hemingway and Carrie Severino

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At the Hillsdale College Kirby Center in Washington, DC, Matthew Spalding sat down with Mollie Hemingway and Carrie Severino to discuss their new book, Justice on Trial: The Kavanaugh Confirmation and the Future of the Supreme Court:

HEMINGWAY: One of the things we were actually surprised by the most was learning that the white house actually was prepared for something like this, and that was reflected from the way they handled the process going well back. So even before the nominee is picked, all the short-listers go through what is called colloquially a sex, drugs and rock-and-roll interview. And this comes after the failed nomination of Douglas Ginsburg. He got in trouble for smoking weed with some of his students at Harvard, and so from that point on all potential nominees get a pretty critical look at their record and anything that might come up.





They actually had heard rumors from some more liberal political activists--or judicial activists--here in town that there might be a roll-out of a strategy of some kind. They didn't have the particulars, but they weren't totally surprised. So when it comes out at the last minute, people who know their Supreme Court nomination history, or who are kind of aware of politics, they weren't that surprised. We didn't know what it would be, but we knew it would be something.

That's one thing--nobody realized how absolutely intense and excruciating the next few weeks would be. And that was more because it just seemed like up was down and reality was turned on its head. You had facts, you had things that seemed like there's nothing here to support these allegations, but the media would present it as if there was a ton of stuff to support it. And you would have exculpatory evidence, and they would ignore it.

And there was this scene where the accuser Christine Blasey Ford names four witnesses who can corroborate her story. All four say they're unable to remember what she's talking about. And in the case of one it's particularly noteworthy because it's her lifelong friend. And when the friend comes out and says, "I'm sorry, I love my friend, but I don't know what she's talking about," it gets the briefest of mention on the news.

And that's when the Kavanaughs realized, "Oh wow, this is bad." They hear it and they thought, "Oh thank God, there's nothing, and everyone will acknowledge this." Instead, the media just kind of downplayed it and moved on as if it was no blip at all. And that was when they realized, this is scary, you're not dealing with rational people here.

SPALDING: Are you making a comment about modern journalism?

HEMINGWAY: Not the best shining moment for the media.

SPALDING: But in the book you talk about the strategy, at least on the administration's part, was more passive, up to a point. It was aggressive, but there was a certain level of aggression. He wanted to be on offense, but at a certain point it radically changed as these kind of strategies really come head-to-head with each other, and the thing kind of takes on a life of its own it seems.

SEVERINO: Yeah, there were some really interesting strategic choices that the White House made. One that we were interested to learn is they actually almost entirely--when in the media the focus was almost entirely on picking apart every aspect of Brett Kavanaugh's life, down in his yearbook as we famously now all can publicly recite all of his yearbook passages and the meaning of "boofing" and all sort of terms--none of that attention was paid publicly to Christine Blasey Ford. But we have learned from talking with lots of people that D.C. is a small town, and there's a lot of people that grew up in that area who still live around here.

And it turns out there were a lot of stories that were very well-known in the area, and people who were coming to the White House and saying, "The stories that we know from being there at the time, that doesn't line up with the image that we're being given of Christine Blasey Ford." They were telling stories about how she was actually much more aggressive with boys that some of the other girls around her. That she was, in fact, a very heavy drinker. So they were hearing all these things, and the White House and the Senators had to make a conscious and strategic decision, "We're not actually going to use this." Even though it does go to points in her story that would attest to that credibility of what she was saying, they knew that the media would be portraying it as attacking the victim if they did that.

And then simultaneously there's a kind of strategic tension with the group that's working on behalf of Kavanaugh, because, of course as Mollie mentioned, he worked for years in the Bush White House, and he has lots of friends who were part of that community. And now he's a Trump nominee. There was kind of a tension between these teams. One was called the "Bushies," and people would say, "The Bushies are saying this." And they were advising a much more calm approach, kind of demur and saying, "Well, I understand that we have to focus on respecting women." And that's all true, but I think it has to do with the approach of how one comes out. On the other team, they're going, "You are a Trump nominee." And you've got people like Don McGahn the White House Counsel saying, "You have to remember you are a Trump nominee."

And then behind the scenes, they're also preparing thinking, "We're going to have to have a hearing." They had already had moots for the previous hearing where they practiced questions. This is a very different kind of thing. It's not, "Do you remember footnote five in the Supreme Court decision?" How do you prepare for that?

So early on they had a moot trying to see how is he going to answer some of these questions that you know would come if they have a public hearing that are really intrusive and private issues that are going to be brought up. And probably Senators that are doing some in a very hostile and rude way. And they had a moot and he in fact responded at that moot very strongly and firmly and they thought, "Great, he sounds perfect. We don't want to over-rehearse this guy." And they stopped.

But in the intervening week there was still these back-and-forth of voices and how you approach it, and so then we had even further America saw the Martha McCallum interview where the approach did seem very different and much more of the kind of calm judicial model rather than seeing a man who was angry at being accused. And then of course the final, very moving testimony he gave at the Senate Judiciary Committee where you saw what we learned was actually in many ways what he was feeling from the first moment, but that had been building this whole time. That emotion in defending his name come out in full display.

SPALDING: Turn around for a moment, let's talk about the criticism as it plays out. What do you make of all that in terms of, there's a letter, they turned out who wrote it and then that testimony, we have all these great figures like Michael Avenatti, and how much of this was coordinated? What do you make of all that? How much of that was planned and laid out? How much of that was...?

HEMINGWAY: This is all information that's kind of dripping out at the time of the hearings, but then we also learn more as part of the research. Christine Blasey Ford was the main accuser, and I think there were a number of accusers, but her accusation was at least in the realm of possible. By the time you're getting to nationwide crime-spree and serial gang-rape cartel leader and boats off the coast, those aren't--well, even though some of these things were actually mentioned by Senators in their opening statements on the re-opening of the hearings--I think most rational people were not taking those seriously.

This was at least in the realm of possibility. A letter gets sent to the House and is shared with Sen. Dianne Feinstein saying that she would like anonymity to share this information. And what was interesting--the Senate actually has a procedure in place for how to handle just this. And it's something that comes up in some frequency. The procedure is completely discreet and is all handled without any public sharing of any information. It does protect the names of all people involved. You have both the accusation that can be investigated without it causing any bad problems for the person who's accusing, but you also have a chance for the person who is being accused to respond. And so it is part of the normal procedure and also part of the normal FBI vetting procedure.

By circumventing that process, that meant that the anonymity couldn't be secured, but it also meant that once, at the last minute when it does get entered into the process, the White House and other people are constrained from sharing any details even though you have this massive public relations campaign going on with Washington Post stories and New Yorker stories and whatnot.

It was very frustrating to the White House. They saw, for instance, conservatives not getting it right about what this allegation was, but they couldn't even correct the record because they were sworn to secrecy if they were to follow the rules.

Anyway, the letter comes out in a way very similar to what happened in the Anita Hill situation and then that's what gets things going. But I think the people in the Senate who were aware of their confirmation history were better prepared than a lot of others. So as they start seeing this deluge and drip-drip-drip, they start realizing, "We're just gonna get this information out there."

One of the Senate Judiciary staffers had learned a story from Justice Thomas that I thought was fascinating. Justice Thomas said, "You know how you get a dog to stop killing your chickens? The way you do it is you take the dead chicken and you wrap it around the neck of the dog, and then the dog loses his taste for chicken." It's a pretty visceral story.

So the idea with the Senate Judiciary staff was, "We're going to make the fact of this attempt to destroy this person's life be like that. You're going to have to wear it around your neck. If you think it's okay to take someone who's gone through all of these background investigations, has a stellar reputation, top-ranked by the American Bar Association for his temperament and whatnot--who's developed this with a lot or work--if you're going to try to destroy this person, we're going to make you own it. We're not going to play the game of what the media were doing."

And so they started just releasing the more and more absurd allegations so that the Democrats all the sudden found themselves on their heels, as they tried to defend what they were doing to Kavanaugh.

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