As the hearing progressed, Senate Democrats became more and more angry. They became steadily more vicious, attacking and smearing Judge Kavanaugh personally. They were frustrated, I believe, that their political plan of letting Republican senators stupidly attack an alleged sexual-assault victim had not materialized. Their frustrations spilled over into bitter and nasty personal attacks. At that point, our role in the hearing changed. We instructed our outside counsel, “You’ve done a good job. We can take it from here.” Countering partisan attacks from Democrats was something that Republicans on the Judiciary Committee felt more than capable of doing.
At that point, we took over in the hearing, engaging directly. I tried to systematically lay out the facts, pointing out how even though Senate Republicans had treated Dr. Ford with nothing but respect, Senate Democrats cynically responded without providing Judge Kavanaugh with a proper opportunity to defend himself. Instead, they (and the media) just presumed him guilty. I also pointed out how each of the three witnesses Dr. Ford referenced had stated on the record, under penalty of perjury, that they did not remember the incident that she alleged.
Perhaps the most memorable exchange of the hearing came from my colleague, Senator Lindsey Graham, who angrily exploded at the blatant hypocrisy of the Democrats. “What you want to do,” Lindsey bellowed at the Democrats sitting across the Judiciary Committee dais, “is to destroy this guy’s life, hold this seat open, and hope you win in 2020.” Not content to leave it there, he continued: “This is the most unethical sham since I’ve been in politics.”
My eighty-five-year-old mother, who is very conservative and had not previously thought highly of Lindsey Graham, immediately sent me a text: “Okay. I love Lindsey Graham.” In the hearing, I walked over and showed Lindsey the text, which caused him to laugh heartily.
Once the allegations came to light, the FBI conducted a supplemental investigation into Dr. Ford’s claims. They interviewed the witnesses identified by Dr. Ford and prepared detailed reports on the results of those interviews. I sat in the secure basement of the U.S. Capitol and read every page of that FBI investigation. Each of the alleged witnesses disagreed with Dr. Ford’s account. At the end of the day, the facts alleged by Dr. Ford sharply contradicted the facts alleged by Judge Kavanaugh. Both could not be true. In our legal system, when we have contradictory testimony, we regularly look to corroborating evidence—whether additional testimony or evidence can shed light on what actually occurred.
In this instance, none of the potential corroborating evidence supported Dr. Ford’s allegation, and all of the witnesses who had been identified contradicted the claims. Given that, I voted to confirm Judge Kavanaugh, as did a majority of my fellow senators. The experience of that confirmation hearing was no doubt searing and personal, and it was made all the more painful because Judge Kavanaugh and his wife have two young daughters. I’ve known Brett Kavanaugh for nearly twenty years, from the early days of the Bush administration. And I’ve known his wife Ashley (a native Texan) even longer, since our work together on the 2000 George W. Bush campaign. I consider them friends; both are good and honorable people, and it’s a travesty that their family was dragged through the mud the way they were.
What kind of Justice Brett Kavanaugh will be is a question that will take many years to assess. John Roberts has already become the new Sandra Day O’Connor, and some observers fear Kavanaugh may join him as the new Anthony Kennedy, together as the swing justices and arbiters in the middle of the Court. And, as the recent Title VII case illustrated—just as it would vary whether it was Kennedy or O’Connor siding with the liberals—it could also sometimes be Gorsuch doing so. It’s too early to make that conclusion, but time will tell. I fervently hope that’s not the case.
Both nominees will no doubt prove better than the nominees Hillary would have put on the Court. But, Republican presidents must do better than our record the past seventy years.
Going forward, there will be additional vacancies either for President Trump to fill or for the next Republican president to fill. The most important criteria that I believe should be applied is whether that individual (1) has a demonstrated proven record of being faithful to the Constitution and (2) has endured pounding criticism—has paid a price for holding that line. Had I been able to choose between Edith Jones and David Souter, I would readily have chosen Judge Jones. Had I been able to choose between John Roberts and Mike Luttig, I would have enthusiastically chosen Judge Luttig. Had I been able to choose between Brett Kavanaugh and Mike Lee, or Neil Gorsuch and Mike Lee, I would have unhesitatingly chosen Mike Lee.
All for the same reason. The stakes are too high—too many critical issues are hanging in the balance. Every single time, without exception, the Republicans nominate a justice who lacks a serious proven record of going through the crucible, that justice has proven a disappointment.
Clerks often emulate their justices. We need more former Scalia and Thomas clerks, and fewer Kennedy clerks. On Trump’s list of twenty-one, Fifth Circuit Judge Don Willett has a decade-long record as a fearless conservative (and he would be the only Evangelical Christian on the Court). Not on the list of twenty-one, Fifth Circuit Judge (and former Thomas clerk) Jim Ho likewise has amassed a very strong record, as has former U.S. solicitor general (and Scalia clerk) Noel Francisco (either of whom would be the first Asian-American on the Court).
Justices “in the mold of Scalia and Thomas” should mean just that.
In the world of Washington, there are always trusted insiders, graybeards who will tell a president, “I know so and so,” and even though their record doesn’t demonstrate it, “trust me,” deep down in their heart, they’re going to be conservative. History teaches us that
