Several speakers, such as Adam Green of the Progressive Change Campaign Committee and Ben Wikler of MoveOn, identified Republicans Susan Collins and Lisa Murkowski, both of whom support abortion rights, as the senators they would press to vote against Kavanaugh. They were off to a rough start with Collins, who felt that some of her colleagues and liberal activists were whipping people into a frenzy. She was determined to fulfill her constitutional duty of “advice and consent” and approach the nomination with an open mind.
The rally was raucous. The crowd grew. Reporters were jostled. For large events, Supreme Court police typically put up barriers to ensure the safety of both protesters and media. They didn’t expect the crowds to be as big or as boisterous as they were.
Shannon Bream, a longtime Supreme Court correspondent, had planned to host her eleven o’clock television show Fox News @ Night from the Supreme Court, but at 9:31 p.m. she tweeted, “Very few times I’ve felt threatened while out in the field. The mood here tonight is very volatile. Law enforcement appears to be closing down 1st Street in front of SCOTUS.”23 Minutes later she announced that the production team was forced to move back to the safety of the Fox News studios.
Across the street in the U.S. Capitol, Republican senators’ senior staff met that night at ten o’clock to begin preparations for the confirmation fight.
By the end of the night, the battle lines had been drawn. Establishment Republicans were delighted with the nomination of an official from the Bush administration. Grassroots conservatives were accepting if not enthusiastic. In their eyes, Kavanaugh was a standard-issue Bushie, a milquetoast nominee. Most conservative leaders kept their mild disappointment to themselves, understanding the precarious situation of the Senate. In fact, some in the White House had expected far more pushback both for selecting Kavanaugh and for not selecting the conservatives’ favorite, Judge Barrett. A few spoke out, but they were discouraged from making too much of it. While Tony Perkins of the Family Research Council did not oppose the nomination, he urged conservatives to “trust but verify” that Kavanaugh would be the justice they wanted.24 As for the progressive left, they didn’t need any more verification. They were enraged and ready to fight.
One of their first attacks was that any nomination by President Trump was illegitimate. As the NAACP’s Hilary Shelton put it, “We have a criminal investigation into the presidency itself. That investigation must be completed before the Senate even thinks of evaluating a lifetime appointment of a Supreme Court justice.” The actress and activist Alyssa Milano had tweeted out the same argument, in all capitals, right after Kennedy stepped down: “TRUMP SHOULD NOT BE ABLE TO CHOOSE A LIFETIME APPOINTEE WHILE HE IS UNDER FEDERAL INVESTIGATION. FULL STOP.”25
Paul Schiff Berman, a professor at George Washington University Law School, wrote in the New York Times that no nominee could be confirmed until Robert Mueller had completed his investigation of the Trump campaign’s possible “collusion” with Russia: “People under the cloud of investigation do not get to pick the judges who may preside over their cases. By this logic, President Trump should not be permitted to appoint a new Supreme Court justice until after the special counsel investigation is over, and we know for sure whether there is evidence of wrongdoing.”26
Whatever its intuitive appeal, Berman’s proposition had no legal basis and was almost laughable in light of recent history. In fact, a majority of the present Court had been appointed by a president who was then under investigation. Anthony Kennedy himself was appointed just a year after an independent counsel began investigating President Reagan’s role in the Iran-Contra affair. President Clinton appointed Stephen Breyer eight months after Attorney General Janet Reno appointed a special prosecutor to investigate the Whitewater scandal. Both Roberts and Alito were appointed while the Bush administration was under investigation by a special counsel in the Valerie Plame affair. And the FBI’s investigation of Trump was already underway when Neil Gorsuch was appointed.27
Other Democrats attempted to impose a “Garland rule.” Still incensed that Senator Grassley had refused to hold hearings on Merrick Garland’s nomination in 2016, they demanded that hearings on this nomination be delayed until after the midterm elections. “With so much at stake for the people of our country, the U.S. Senate must be consistent and consider the president’s nominee once the new Congress is seated in January,” Senator Dick Durbin said.28
Of course, while there were numerous precedents for not holding hearings in a presidential election year when the Senate was controlled by a party other than the president’s—and even for an oppositional Senate holding seats open for years to outlast a president—there was no such precedent regarding midterm elections, particularly when both the Senate and the White House were controlled by the same party.
One Supreme Court reporter expected liberals to try to defeat Kavanaugh’s nomination as they had defeated Robert Bork’s but cautioned, “Pulling off a sequel like that would seem to require all the plot twists, special effects and movie magic that Kavanaugh’s antagonists can muster.”29
That was precisely the model progressive activists had in mind.
Conservatives had been blindsided by the well-financed and well-organized political campaign against Robert Bork’s nomination in 1987, but by the time of the Kavanaugh confirmation they had learned the techniques pioneered by the left and had invented a few of their own. Now that the Supreme Court seat that had been denied to Bork was open again, they were ready.
The Judicial Crisis Network—originally called the Judicial Confirmation Network—was established in 2005 to rectify the imbalance in confirmation battles that was revealed with Bork’s nomination.30 People for the American Way (PFAW) had dropped a hundred thousand dollars for cable TV spots, far more than the entire budget of the pro-Bork Coalitions for America.31 While PFAW was buying thirty-thousand-dollar full-page ads in the New York Times, Concerned Women for America could afford only two ads in small newspapers at about four hundred dollars apiece. The heavily outgunned pro-Bork forces were limited to grassroots work, on the cheap, their leaders licking their own envelopes for mass mailings. The liberals, by contrast, were able to carpet-bomb the political battlefield through the major media.32
The one-sidedness of the fight was the result, in part, of a deliberate decision of the Reagan administration not to engage on the same terms. After Gregory Peck took to the airwaves to defame Judge Bork, both Clint Eastwood and Charlton Heston offered to appear in a counter-ad. The White House turned them down. Bork’s many former clerks working in the Department of Justice, lawyers who knew his record better than anybody, were explicitly forbidden to defend him publicly.33 Such advocacy was considered unseemly.
Since the Bork disaster, the right had recognized that refusing to fight on the new terms would guarantee defeat, and the attacks on Clarence Thomas’s nomination showed how savage those new terms could be. The Marquess of Queensberry Rules were out. A powerful media and surrogate campaign was the only way to combat the inevitable onslaught from the left.
The Judicial Crisis Network, agreeing with Kavanaugh about the importance of the first forty-eight hours, was ready on day one with a twelve-million-dollar war chest.34 It had prepared videos and websites supporting each of the leading candidates before the nominee was announced. The paid advertising that the Reagan White House eschewed has become an important feature of judicial confirmations. It is a means of communicating with the average American, signaling strength to the politicians who will determine the nomination’s fate, and grabbing headlines.