Book on Kavanaugh argues nomination process is dysfunctional

Book on Kavanaugh argues nomination process is dysfunctional

Book on Kavanaugh argues nomination process is dysfunctional

This Oct. 5, 2018, file photo shows the U.S. Supreme Court building before dawn in Washington. (Credit: J. David /AP.)

Mollie Hemingway and Carrie Severino's new book 'Justice on Trial: The Kavanaugh Confirmation and the Future of the Supreme Court' argues the judicial confirmation process, on the point of breakdown for thirty years, has now proved utterly dysfunctional.

[Editor’s Note: Mollie Hemingway and Carrie Severino’s new book Justice on Trial: The Kavanaugh Confirmation and the Future of the Supreme Court argues the judicial confirmation process, on the point of breakdown for thirty years, has now proved utterly dysfunctional. Hemingway is a senior editor at The Federalist and the Senior Journalism Fellow at Hillsdale College. Carrie Severino is chief counsel and policy director of the Judicial Crisis Network and until March 2010 was an Olin/Searle Fellow and a Dean’s Visiting Scholar at Georgetown University Law Center. The authors spoke to Charles Camosy about their work.]

Camosy: Your book is making quite a splash. There are other reviews and interviews people can access to learn about the book more generally, but let’s focus on Kavanaugh’s Catholicism. Based on your research, how much did his Catholic faith genuinely matter to him?

Hemingway and Severino: We researched the topic and worked to include the role religion played for the Kavanaugh family. One of our favorite Amazon reviews said that the only way that our personal views were revealed in the text of our book was that we were respectful toward the religious aspects of the story. We appreciated that.

Kavanaugh grew up attending Mass and went to Catholic schools throughout his adolescence. He continues to practice his faith, including as a regular lector at his parish, and sends his children to Catholic school. He spoke publicly during the confirmation process about his faith and how it motivates his charity work and his desire to empathize with the accused and impoverished. As the confirmation process became difficult, he found strength in that faith.

We learned that Ashley Kavanaugh and her friends were sustained by their faith during the most trying phases of the confirmation process, sharing Scripture verses with friends and drawing comfort from the music of Christian artists Lauren Daigle and Julianna Zobrist. For his part, Judge Kavanaugh found himself returning to a song sung frequently in chapel at Georgetown Prep: “Be Not Afraid.” As we write in the book, he and his friends used to make fun of the way their beloved music teacher Gary Daum sang the hymn. But the frequent repetition of the song had the intended effect and Kavanaugh remembered the words and drew strength from them when he needed it most.

It is a little bit hard to believe that St. Paul’s “thorn in the flesh” was the second reading at the Mass minutes before Kavanaugh was told he would be the nominee. What a soberingly prophetic moment that turned out to be.

In Justice on Trial, we tell the story about how Kavanaugh and his team were working hard to secure the nomination to the Supreme Court. Kavanaugh had been considered the front-runner but as the announcement neared, his prospects did not seem good. The media were reporting that Senate Majority Leader Mitch McConnell strongly discouraged President Trump from picking him on account of the mountains of paperwork the Senate would have to go through to confirm him. Other reports said his close ties to the Bushes meant that Trump was souring on him. Rumors of other nominees being more likely filled the media. Kavanaugh and his team were pretty sure it would not happen and began commiserating with each other.

Kavanaugh wondered whether he should keep his scheduled time as lector that week, given all the publicity surrounding the nomination process, ultimately deciding it would be a good idea. As he prepared for the epistle he would read, he sent it to his clerks, noting how fitting the passage was. He drew from it encouragement for the ordeal he was going through including the very real possibility he would not be picked. What we all know, of course, is that those verses would be even more appropriate for what he was about to go through in the ensuing months. We also found it interesting to learn that Clarence Thomas had meditated on the same passage during his brutal confirmation process. In his memoir My Grandfather’s Son, Justice Thomas describes reading the same verses from 2 Corinthians: “Therefore I take pleasures in infirmities, in reproaches, in needs, in persecutions, in distresses for Christ’s sake. For when I am weak, then I am strong.”

How much, do you think, did Kavanaugh’s profound Catholic faith contribute to the unprecedented assault he faced during his nomination?

Honestly, we’re not sure if it did. Much of the opposition to Kavanaugh was organized before he was even named. While some other judges on President Trump’s list of potential nominees had faced scurrilous attacks on their Catholicism, Kavanaugh was not one of them. The opposition was centered around the growing battle over the courts and their role.

Some people view the Court as the means by which social change can be accomplished over and against the expressed will of the people. Others believe the Court’s proper role is to determine simply whether laws are Constitutional or not. While the issue of abortion and future of Roe v. Wade loomed large over the confirmation process, it’s not clear whether concerns that abortion advocates were focused on Kavanaugh’s personal beliefs on the matter so much as his judicial philosophy which focuses on the text and original meaning of the Constitution, neither of which includes a right to abortion.

Your book reveals many of the deep and glaring problems with the charges that had been leveled at Kavanaugh. But especially given the Church’s own struggles with sexual abuse, the importance of our post-#MeToo moment, and an exceptionless prohibition against sexual violence in Catholic moral theology, there are some who find a focus on this, rather than the reports of women claiming abuse, to be an unsettling capitulation to rape culture and patriarchy. How do you respond to this kind of reaction?

It is our view that due process and rule of law are the means by which all people can be protected, including in the context of sexual assault claims. Allegations of wrongdoing absolutely must be taken seriously and thoroughly vetted, for the sake of the individuals involved and the greater society. We fear that the positive impact of the #MeToo movement, in which powerful men who abuse women are beginning to be held accountable, would be undermined by loosening the standards of evidence or otherwise politicizing the movement. Harming women and children sexually is a grievous sin. But calumny – making false claims that damage someone’s reputation – is also serious, and care must be taken to determine whether there is evidence present to determine the truth of any allegation. Justice is not served by casting out due process as the means to learn the truth, and it is our view that this set back the #MeToo movement and the good it has accomplished.

As you point out in the book, Judge Amy Coney Barrett — another deeply committed Catholic — was in the running for what became Kavanaugh’s seat. At least if a Republican president nominates the next judge for the Supreme Court, she is likely to be a contender once again. Given your reporting on the Kavanaugh nomination, what do you think would be in store for someone like her if she ever ends up being a nominee?

Some people advocated picking Judge Barrett or another female nominee precisely because they predicted that men would be more vulnerable to an unsubstantiated #MeToo claim. Our research indicates that confirmation battles heat up most when Republican presidents are naming someone to fill a seat that was held by a liberal or swing vote. The intensity of the attacks on the next nominee may well be more determined by whether he or she is replacing a liberal or conservative justice than by the identity of the nominee. While attacks on Barrett would be less likely to take the form of sexual assault allegations, attacks of some form seem inevitable if the nomination were likely to change the balance of the court.

Since Barrett’s previous confirmation hearing involved attacks on her Catholic faith and practice, and further attacks on the Knights of Columbus have since emerged in other nominations, it is likely that criticism of her faith would resurface if she were nominated to the high Court.


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