Justice on Trial: The Kavanaugh Confirmation and the Future of the Supreme Court

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Justice Anthony Kennedy slipped out of the Supreme Court building on June 27, 2018, and traveled incognito to the White House to inform President Donald Trump that he was retiring, setting in motion a political process that his successor, Brett Kavanaugh, would denounce three months later as a “national disgrace” and a “circus.”

Justice on Trial, the definitive insider’s account of Kavanaugh’s appointment to the Supreme Court, is based on extraordinary access to more than one hundred key figures—including the president, justices, and senators—in that ferocious political drama.

The Trump presidency opened with the appointment of Neil Gorsuch to succeed the late Antonin Scalia on the Supreme Court. But the following year, when Trump drew from the same list of candidates for his nomination of Brett Kavanaugh, the justice being replaced was the swing vote on abortion, and all hell broke loose.

The judicial confirmation process, on the point of breakdown for thirty years, now proved utterly dysfunctional. Unverified accusations of sexual assault became weapons in a ruthless campaign of personal destruction, culminating in the melodramatic hearings in which Kavanaugh’s impassioned defense resuscitated a nomination that seemed beyond saving.

The Supreme Court has become the arbiter of our nation’s most vexing and divisive disputes. With the stakes of each vacancy incalculably high, the incentive to destroy a nominee is nearly irresistible. The next time a nomination promises to change the balance of the Court, Hemingway and Severino warn, the confirmation fight will be even uglier than Kavanaugh’s.

A good person might accept that nomination in the naïve belief that what happened to Kavanaugh won’t happen to him because he is a good person. But it can happen, it does happen, and it just happened. The question is whether America will let it happen again.
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About the author

MOLLIE HEMINGWAY, a senior editor at The Federalist and a contributor to Fox News, is one of the country’s most thoughtful, prescient, and respected political commentators.

CARRIE SEVERINO is chief counsel and policy director of the Judicial Crisis Network. A graduate of Harvard Law School, she clerked for Justice Clarence Thomas on the U.S. Supreme Court.
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Additional Information

Publisher
Simon and Schuster
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Published on
Jul 9, 2019
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Pages
375
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ISBN
9781621579847
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Features
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Language
English
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Genres
Law / Courts
Political Science / American Government / National
Political Science / Political Ideologies / Conservatism & Liberalism
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Content Protection
This content is DRM protected.
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Eligible for Family Library

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From the prizewinning author of The Nine, a gripping insider's account of the momentous ideological war between the John Roberts Supreme Court and the Obama administration.

From the moment John Roberts, the chief justice of the United States, blundered through the Oath of Office at Barack Obama's inauguration, the relationship between the Supreme Court and the White House has been confrontational. Both men are young, brilliant, charismatic, charming, determined to change the course of the nation—and completely at odds on almost every major constitutional issue. One is radical; one essentially conservative. The surprise is that Obama is the conservative—a believer in incremental change, compromise, and pragmatism over ideology. Roberts—and his allies on the Court—seek to overturn decades of precedent: in short, to undo the ultimate victory FDR achieved in the New Deal.
   This ideological war will crescendo during the 2011-2012 term, in which several landmark cases are on the Court's docket—most crucially, a challenge to Obama's controversial health-care legislation. With four new justices joining the Court in just five years, including Obama's appointees Sonia Sotomayor and Elena Kagan, this is a dramatically—and historically—different Supreme Court, playing for the highest of stakes.
   No one is better positioned to chronicle this dramatic tale than Jeffrey Toobin, whose prize-winning bestseller The Nine laid bare the inner workings and conflicts of the Court in meticulous and entertaining detail. As the nation prepares to vote for President in 2012, the future of the Supreme Court will also be on the ballot.
The Supreme Court appointments process is broken, and the timing couldn't be worse--for liberals or conservatives. The Court is just one more solid conservative justice away from an ideological sea change--a hard-right turn on an array of issues that affect every American, from abortion to environmental protection. But neither those who look at this prospect with pleasure nor those who view it with horror will be able to make informed judgments about the next nominee to the Court--unless the appointments process is fixed now. In The Next Justice, Christopher Eisgruber boldly proposes a way to do just that. He describes a new and better manner of deliberating about who should serve on the Court--an approach that puts the burden on nominees to show that their judicial philosophies and politics are acceptable to senators and citizens alike. And he makes a new case for the virtue of judicial moderates.

Long on partisan rancor and short on serious discussion, today's appointments process reveals little about what kind of judge a nominee might make. Eisgruber argues that the solution is to investigate how nominees would answer a basic question about the Court's role: When and why is it beneficial for judges to trump the decisions of elected officials? Through an examination of the politics and history of the Court, Eisgruber demonstrates that pursuing this question would reveal far more about nominees than do other tactics, such as investigating their views of specific precedents or the framers' intentions.


Written with great clarity and energy, The Next Justice provides a welcome exit from the uninformative political theater of the current appointments process.

"The passing of this brilliant jurist is a great loss, but his writings—with their plain language and constitutional moorings—will guide generations to come." - Speaker of the House Paul Ryan

The sudden passing of Justice Antonin Scalia shook America. After almost thirty years on the Supreme Court, Scalia had become as integral to the institution as the hallowed room in which he sat. His wisecracking interruptions during oral arguments, his unmatched legal wisdom, his unwavering dedication to the Constitution, and his blistering dissents defined his leadership role on the court and inspired new generations of policymakers and legal minds.

Now, as Republicans and Democrats wage war over Scalia’s lamentably empty Supreme Court seat, Kevin Ring, former counsel to the U.S. Senate’s Constitution Subcommittee, has taken a close look at the cases that best illustrate Scalia’s character, philosophy, and legacy. In Scalia’s Court: A Legacy of Landmark Opinions and Dissents, Ring collects Scalia’s most memorable opinions on free speech, separation of powers, race, religious freedom, the rights of the accused, abortion, and more; and intersperses Scalia's own words with an analysis of his legal reasoning and his lasting impact on American jurisprudence.

“I don’t worry about my legacy,” Scalia once told an audience at the National Archives. “Just do your job right, and who cares?”

Now that "the lion of American law has left the stage,” as the U.S. Attorney General put it, it is for the rest of America to worry about his legacy—and to care.
The still-unfolding story of America’s Constitution is a history of heroes and villains—the flawed visionaries who inspired and crafted liberty’s safeguards, and the shortsighted opportunists who defied them. Those stories are known by few today.In Our Lost Constitution, Senator Mike Lee tells the dramatic, little-known stories behind six of the Constitution’s most indispensible provisions. He shows their rise. He shows their fall. And he makes vividly clear how nearly every abuse of federal power today is rooted in neglect of this Lost Constitution. For example:


   • The Origination Clause says that all bills to raise taxes must originate in the House of Representatives, but contempt for the clause ensured the passage of Obamacare.
   • The Fourth Amendment protects us against unreasonable searches and seizures, but the NSA now collects our private data without a warrant.
   • The Legislative Powers Clause means that only Congress can pass laws, but unelected agencies now produce ninety-nine out of every one hundred pages of legal rules imposed on the American people.
Lee’s cast of characters includes a former Ku Klux Klansman, who hijacked the Establishment Clause to strangle Catholic schools; the Chief Justice of the Supreme Court, who called the Second Amendment a fraud; and the revered president who began his first of four terms by threating to shatter the balance of power between Congress and the president, and who began his second term by vowing to do the same to the Supreme Court.

Fortunately, the Constitution has always had its defenders. Senator Lee tells the story of how Andrew Jackson, noted for his courage in duels and politics, stood firm against the unconstitutional expansion of federal powers. He brings to life Ben Franklin’s genius for compromise at a deeply divided constitutional convention. And he tells how in 2008, a couple of unlikely challengers persuaded the Supreme Court to rediscover the Second Amendment’s right to keep and bear arms.

Sections of the Constitution may have been forgotten, but it’s not too late to bring them back—if only we remember why we once demanded them and how we later lost them. Drawing on his experience working in all three branches of government, Senator Lee makes a bold case for resurrecting the Lost Constitution to restore and defend our fundamental liberties.
In the bestselling tradition of The Nine and The Brethren, The Most Dangerous Branch takes us inside the secret world of the Supreme Court. David A. Kaplan, the former legal affairs editor of Newsweek, shows how the justices subvert the role of the other branches of government—and how we’ve come to accept it at our peril.

With the retirement of Justice Anthony Kennedy, the Court has never before been more central in American life. It is the nine justices who too often now decide the controversial issues of our time—from abortion and same-sex marriage, to gun control, campaign finance and voting rights. The Court is so crucial that many voters in 2016 made their choice based on whom they thought their presidential candidate would name to the Court. Donald Trump picked Neil Gorsuch—the key decision of his new administration. Brett Kavanaugh—replacing Kennedy—will be even more important, holding the swing vote over so much social policy. Is that really how democracy is supposed to work?
 
Based on exclusive interviews with the justices and dozens of their law clerks, Kaplan provides fresh details about life behind the scenes at the Court – Clarence Thomas’s simmering rage, Antonin Scalia’s death, Ruth Bader Ginsburg’s celebrity, Breyer Bingo, the petty feuding between Gorsuch and the chief justice, and what John Roberts thinks of his critics.
 
Kaplan presents a sweeping narrative of the justices’ aggrandizement of power over the decades – from Roe v. Wade to Bush v. Gore to Citizens United, to rulings during the 2017-18 term. But the arrogance of the Court isn’t partisan: Conservative and liberal justices alike are guilty of overreach. Challenging conventional wisdom about the Court’s transcendent power, The Most Dangerous Branch is sure to rile both sides of the political aisle.
An all-star team of eighteen conservative writers offers a hilarious, insightful, sanctimony-free remix of William Bennett’s The Book of Virtues—without parental controls. The Seven Deadly Virtues sits down next to readers at the bar, buys them a drink, and an hour or three later, ushers them into the revival tent without them even realizing it.

The book’s contributors include Sonny Bunch, Christopher Buckley, David “Iowahawk” Burge, Christopher Caldwell, Andrew Ferguson, Jonah Goldberg, Michael Graham, Mollie Hemingway, Rita Koganzon, Matt Labash, James Lileks, Rob Long, Larry Miller, P. J. O’Rourke, Joe Queenan, Christine Rosen, and Andrew Stiles. Jonathan V. Last, senior writer at the Weekly Standard, editor of the collection, is also a contributor. All eighteen essays in this book are appearing for the first time anywhere.

In the book’s opening essay, P. J. O’Rourke observes: “Virtue has by no means disappeared. It’s as much in public view as ever. But it’s been strung up by the heels. Virtue is upside down. Virtue is uncomfortable. Virtue looks ridiculous. All the change and the house keys are falling out of Virtue’s pants pockets.”

Here are the virtues everyone (including the book’s contributors) was taught in Sunday school but have totally forgotten about until this very moment. In this sanctimony-free zone:

• Joe Queenan observes: “In essence, thrift is a virtue that resembles being very good at Mahjong. You’ve heard about people who can do it, but you’ve never actually met any of them.”
• P. J. O’Rourke notes: “Fortitude is quaint. We praise the greatest generation for having it, but they had aluminum siding, church on Sunday, and jobs that required them to wear neckties or nylons (but never at the same time). We don’t want those either.”
• Christine Rosen writes: “A fellowship grounded in sociality means enjoying the company of those with whom you actually share physical space rather than those with whom you regularly and enthusiastically exchange cat videos.”
• Rob Long offers his version of modern day justice: if you sleep late on the weekend, you are forced to wait thirty minutes in line at Costco.
• Jonah Goldberg offers: “There was a time when this desire-to-do-good-in-all-things was considered the only kind of integrity: ‘Angels are better than mortals. They’re always certain about what is right because, by definition, they’re doing God’s will.’ Gabriel knew when it was okay to remove a mattress tag and Sandalphon always tipped the correct amount.”
• Sonny Bunch dissects forbearance, observing that the fictional Two Minutes Hate of George Orwell’s 1984 is now actually a reality directed at living, breathing people. Thanks, in part, to the Internet, “Its targets are designated by a spontaneously created mob—one that, due to its hive-mind nature—is virtually impossible to call off.”

By the time readers have completed The Seven Deadly Virtues, they won’t even realize that they’ve just been catechized into an entirely different—and better—moral universe.
From six-time #1 New York Times bestselling author, FOX News star, and radio host Mark R. Levin comes a groundbreaking and enlightening book that shows how the great tradition of the American free press has degenerated into a standardless profession that has squandered the faith and trust of the American public, not through actions of government officials, but through its own abandonment of reportorial integrity and objective journalism.

Unfreedom of the Press is not just another book about the press. Levin shows how those entrusted with news reporting today are destroying freedom of the press from within: “not government oppression or suppression,” he writes, but self-censorship, group-think, bias by omission, and passing off opinion, propaganda, pseudo-events, and outright lies as news.

With the depth of historical background for which his books are renowned, Levin takes the reader on a journey through the early American patriot press, which proudly promoted the principles set forth in the Declaration of Independence and the Constitution, followed by the early decades of the Republic during which newspapers around the young country were open and transparent about their fierce allegiance to one political party or the other.

It was only at the start of the Progressive Era and the twentieth century that the supposed “objectivity of the press” first surfaced, leaving us where we are today: with a partisan party-press overwhelmingly aligned with a political ideology but hypocritically engaged in a massive untruth as to its real nature.
New York Times Bestseller

What are the consequences if the people given control over our government have no idea how it works?

"The election happened," remembers Elizabeth Sherwood-Randall, then deputy secretary of the Department of Energy. "And then there was radio silence." Across all departments, similar stories were playing out: Trump appointees were few and far between; those that did show up were shockingly uninformed about the functions of their new workplace. Some even threw away the briefing books that had been prepared for them.

Michael Lewis’s brilliant narrative takes us into the engine rooms of a government under attack by its own leaders. In Agriculture the funding of vital programs like food stamps and school lunches is being slashed. The Commerce Department may not have enough staff to conduct the 2020 Census properly. Over at Energy, where international nuclear risk is managed, it’s not clear there will be enough inspectors to track and locate black market uranium before terrorists do.

Willful ignorance plays a role in these looming disasters. If your ambition is to maximize short-term gains without regard to the long-term cost, you are better off not knowing those costs. If you want to preserve your personal immunity to the hard problems, it’s better never to really understand those problems. There is upside to ignorance, and downside to knowledge. Knowledge makes life messier. It makes it a bit more difficult for a person who wishes to shrink the world to a worldview.

If there are dangerous fools in this book, there are also heroes, unsung, of course. They are the linchpins of the system—those public servants whose knowledge, dedication, and proactivity keep the machinery running. Michael Lewis finds them, and he asks them what keeps them up at night.

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