Kaplan co-chairs Running Start, a nonprofit organization that trains women from both parties to run for office. Her co-chairman, Tasha Cole, a Democrat and the vice president of the Congressional Black Caucus Foundation, went out of her way to support Kaplan’s stand. “Watching her support a dear friend in this political climate with conviction, class, grace and perseverance turns a new page in our friendship,” Cole wrote in a Facebook post.30 The two have used the experience as a teaching moment for the young women they mentor through Running Start, encouraging them to use their voices, even when that may be unpopular.
That model of friendship despite political differences was embraced by Lisa Blatt, the Washington “super lawyer” who introduced Kavanaugh at his first hearing. The self-described liberal feminist holds the title for the most Supreme Court arguments by any woman—thirty-seven—and has won an astonishing thirty-four of those.31 She said Kavanaugh was “unquestionably well-qualified, brilliant, has integrity and is within the mainstream of legal thought.”32
In response, Brian Fallon, Hillary Clinton’s former press spokesman, called Blatt’s endorsement of Kavanaugh a “transactional ploy” and criticized her for “selling out progressive causes in order to advance her corporate clients’ interests.”33 Slate asked, “Why Is Lisa Blatt Endorsing Brett Kavanaugh?” and then answered its own question: “Because rich clients trump justice.”34
Blatt took Slate’s criticism in stride, considering it understandable but inaccurate. Lawyers on both sides of the aisle face those charges when they endorse someone they are likely to appear before as litigants. What she found patronizing and insulting was the assertion of people like Brian Fallon—even before the Ford allegations—that because she believed Brett Kavanaugh was a good person, she wasn’t a real liberal or was a patsy for the Republicans. Even worse was the hate mail she received, including people expressing hope that her daughter would be assaulted.
Most of Blatt’s friends who shared her politics distanced themselves from her. She offered them a choice: be her friend and agree to disagree about Kavanaugh or live in their political bubble without her. Most chose politics. Only two friends decided they could stand by her. They helped her pick out a dress to wear to the hearings and were able to appreciate how exciting it was for her to be invited to testify before the Senate. Many of Blatt’s colleagues were no more supportive than her friends, suggesting that her stand for Kavanaugh was hurting hiring at the firm. Others were patronizing or condescending, offering to help her back away from her support of Kavanaugh toward the end of the process. They didn’t realize she still wanted him confirmed. She switched jobs and has now found a group of partners who can get along even while embracing a wide range of political viewpoints. It’s a model that is all too rare in today’s world.
Blatt is sanguine about her experience. “Far from feeling like a victim, I am proud to have stood by him and would do the same thing all over again,” she says. If she has lost friends, she views it as their loss. In fact, she describes it as “the best thing that ever happened to me.” And, of course, she has the luxury of having great options and another firm that welcomed her. Her bluntness is refreshing in a world of snowflakes, forced apologies, and social ostracism. She called their bluff, and by walking away from their demands for conformity, she robbed them of their power. Imagine a world where fewer people were scared to stand up for what they believed. It could start a virtuous circle, in which every person who bucked the popular views would drive down the cost of standing up.
Many things went horribly wrong on Brett Kavanaugh’s road to the Supreme Court. But more importantly, many things went right. It was no accident that, when confronted with the most aggressive, coordinated, and well-funded attack on a judicial nominee in this nation’s history, the effort to confirm Kavanaugh was successful. There were at least five reasons for this success.
First, the nation had a president who supported the conservative judicial movement. His campaign had assembled a coalition that included that movement, and he embraced the cause of nominating principled originalist judges.
Winning an election, however, is not enough. The appointment of a Supreme Court justice is the work of key members of the president’s senior staff, who must make the nomination and confirmation a priority. Once in office, President Trump put in place a highly qualified team, headed by Don McGahn, who enabled him to fulfill his campaign promise of putting reliable originalists on the Court. And Trump stood by the project when it became politically imperiled.
Second, Republicans controlled the Senate. In today’s polarized environment, the likelihood of a Democrat’s voting for any Republican nominee, however qualified, is miniscule (although there are still plenty of Republicans who will compliantly vote for a Democratic nominee). Controlling the Senate is therefore essential for appointing a conservative to the Court.
Third, an array of organizations made the confirmation of originalist judges a priority. That infrastructure made the Gorsuch and Kavanaugh victories possible. And that infrastructure was the product of thirty-five years of work by the conservative legal movement to establish itself as a potent and well-organized force for changing the judiciary and the legal culture. It nurtured the lawyers who would staff the White House and the Department of Justice, who would be elected to the Senate and become key aides, and who would become judges themselves. And it carried out the slow but crucial task of educating the public on the importance of constitutional principles and the judiciary’s role in upholding them. This relentless work eventually produced the public demand for a president who would make the judiciary a priority.
Fourth, new media outlets emerged to challenge the liberalism that had reigned in the press for decades. These publications, web magazines, and podcasts refused to let liberal media control the narrative. They confidently reported the facts and showed courage in the face of overwhelming pressure.
Finally, none of these achievements would have been possible without conservative Americans themselves. They rallied behind candidates, provided their needed campaign funds, and organized and funded advocacy groups. Americans’ instinctual understanding of the value of the rule of law played an important role.
Despite the personal fallout for Kavanaugh and those involved in the confirmation battle, it was obvious from the beginning that the frenzy surrounding his confirmation was not about his qualification for the job. Instead it was about control of the Supreme Court, an institution that plays an increasingly large—and increasingly questionable—role in America’s social, economic, and political life.
The growth of the Court’s influence has coincided with that of the federal government itself. As the ambition of federal legislation increased from the New Deal onward, the possibilities for running afoul of the law increased dramatically. At the same time, the growth of the administrative state introduced the proliferating regulations of a multitude of federal agencies, administrations, and commissions, which have the force of law. Members of Congress found it simpler to “do something” about major problems by writing vague legislation and leaving the details to be worked out by “experts” in administrative agencies. They could pass laws that aspired to solving great problems without having to reach the compromises required to gain the necessary votes or being accountable for making the hard choices that governing demands.