Supreme Revenge

SUPREME REVENGE: Battle for the Court (2020)

This is an update of a program that originally aired May 21, 2019.

FEMALE NEWSREADER:

This is a Fox News alert. U.S. Supreme Court Justice Ruth Bader Ginsburg has died at the age of 87.

MALE NEWSREADER:

The pioneer of women’s rights and gender equality—

FEMALE NEWSREADER:

President Trump may have the opportunity to nominate a third person.

MALE NEWSREADER:

The president is at a rally right now. Do you think he knows that this happened? I mean, this is going to have—

JOSH HOLMES, Fmr. McConnell Chief of Staff:

It was a surreal moment where something country-changing was happening, and you have the president of the United States standing on stage unaware.

FEMALE REPORTER:

Mr. President, RBG!

NARRATOR:

As he left the stage—

FEMALE REPORTER:

Mr. President, RBG!

NARRATOR:

—a reporter delivered the news.

FEMALE REPORTER:

Ruth Bader Ginsburg has died. Ruth Bader Ginsburg has passed away.

PRESIDENT DONALD TRUMP:

She just died?

FEMALE REPORTER:

Yes.

DONALD TRUMP:

Wow. I didn’t know that, I just, uh—you’re telling me now for the first time.

SEN. JEFF FLAKE (R-AZ), Judiciary Cmte., 2013-19:

I thought, “This is going to upend the election.” This was the October surprise just a few weeks before October.

FEMALE NEWSREADER:

Mourners gathered in front of the Supreme Court to pay tribute to Ruth Bader Ginsburg.

NARRATOR:

For Democrats, the death of the iconic leader of the court’s liberal wing was a nightmare, just over a month before the election.

SEN. DICK DURBIN (D-IL), Judiciary Cmte.:

It really was a stunning moment when we finally realized she was gone. I was hoping she would be able to hold on for a new president, and I’m sure she was, too.

MALE NEWSREADER:

—as people around the nation react to the death of trailblazing Justice Ruth Bader Ginsburg.

NARRATOR:

From her deathbed, Ginsburg’s last request.

NINA TOTENBERG, NPR:

Her family had said to her, “Is there anything you would like to write?” She said, “My most fervent wish is that my seat not be filled until after a new president is elected.”

NARRATOR:

But that was not what Republican Senate Majority Leader Mitch McConnell had in mind.

DARLENE SUPERVILLE, The Associated Press:

What it meant for Sen. McConnell was to cement a conservative majority on the U.S. Supreme Court. It’s something that McConnell has longed for, dreamed about, worked for during his entire career in the Senate.

NARRATOR:

That night, McConnell reached the president on Air Force One.

JOSH HOLMES:

McConnell told him two things. He said, “First, I’m going to put out a statement that says we’re going to fill the vacancy.” Second, he said, “You’ve got to nominate Amy Coney Barrett.”

NARRATOR:

Amy Coney Barrett: a 48-year-old conservative appeals court judge—McConnell’s way of securing control of the Supreme Court for years to come.

JEFF FLAKE:

To be able to say that we’re going to have a conservative court for another generation is important to him. For Mitch McConnell, the court is everything.

FEMALE NEWSREADER:

This is going to be a rough battle on Capitol Hill, and it’s a very—

NARRATOR:

Mitch McConnell’s determination to transform the Supreme Court had been his life’s work.

MALE NEWSREADER:

—the dismay of several senators, U.S. Supreme Court nominee Clarence Thomas managed to elude—

FEMALE NEWSREADER:

—potentially ensuring a conservative majority for decades—

NARRATOR:

Through bruising confirmation battles—

MALE NEWSREADER:

—urged Democrats to keep an open mind about Kavanaugh—

NARRATOR:

A struggle over ideology and power—

FEMALE NEWSREADER:

The White House has been packaging Clarence Thomas like a political candidate.

MALE NEWSREADER:

—expected to be one of the most contentious confirmation hearings in memory.

NARRATOR:

Ignited by a devastating defeat—

FEMALE NEWSREADER:

—rejecting the nomination of Judge Bork—

MALE NEWSREADER:

For Judge Bork, the long public ordeal—

NARRATOR:

And a promise to retaliate.

The Rise of Robert Bork

1987

MALE NEWSREADER:

The administration is marshaling all its resources for what may be the last great—

MALE NEWSREADER:

—the foreshadowing of what could be one the great Supreme Court nomination fights of the century—

NARRATOR:

The decades-long judicial wars started at the Reagan White House.

PRESIDENT RONALD REAGAN:

—and it’s with great pleasure and deep respect for his extraordinary abilities that I today announce my intention to nominate United States Court of Appeals Judge Robert H. Bork to be an associate justice of the Supreme Court.

THEODORE OLSON, Asst. Attorney General, Reagan:

I thought, “Well, this man is an ideal person to be on the Supreme Court.”

RONALD REAGAN:

Judge Bork, widely regarded as the most prominent and intellectually powerful advocate of judicial restraint—

NINA TOTENBERG:

Bork was sort of the hallmark of ultraconservative legal thought.

This was going to dramatically change the court. It was going to change it in a far more conservative direction.

NARRATOR:

Reagan had already successfully appointed conservatives to a court he considered too liberal: Sandra Day O’Connor; William Rehnquist, elevated to chief justice; Antonin Scalia; and now, with the retirement of Lewis Powell, Reagan could secure conservative control of the court.

NAN ARON, President, Alliance for Justice:

So this was an opportunity to really change the direction, not just for the next four years, but Republicans were hoping for the next 40 years.

NARRATOR:

Reagan’s attorney general made a phone call to Capitol Hill. He wanted to alert one powerful Democratic senator.

JEFF BLATTNER, Judiciary Cmte. staff, Kennedy:

Sen. Kennedy got a note that Attorney General Meese was calling for him. And he stepped out of the hearing into a phone booth and took the call. And Meese told him that it was going to be Bork.

NARRATOR:

Kennedy headed for the Senate chamber. To the liberal senator from Massachusetts, Bork was a dire threat.

ETHAN BRONNER, Author, Battle for Justice:

Everything that Bork had written and stood for meant that the civil rights and affirmative action push of the civil rights movement was in danger.

SENATE CHAIRMAN:

—and the senator from Massachusetts is recognized for five minutes.

NARRATOR:

It had only been an hour since Reagan’s announcement. Kennedy let the president and Bork know they were in for a fight.

SEN. TED KENNEDY (D-MA):

Mr. President, I oppose the nomination of Robert Bork to the Supreme Court, and I urge the Senate to reject it.

SEN. ALAN SIMPSON (R-WY), Judiciary Cmte. 1979-97:

And our staff said, “Hey, go hear what Kennedy is saying.” So I went over.

TED KENNEDY:

Robert Bork’s America is a land in which women would be forced into back-alley abortions, Blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids—

LINDA GREENHOUSE, The New York Times:

Whoa, this sounds a little over the top. I knew Robert Bork; he’d been a professor of mine, and I liked the guy, but certainly my journalistic instinct was, “OK, the fight’s on, the fat’s in the fire. This is really going to be something.”

TED KENNEDY:

No justice would be better than this injustice. I yield back the balance of my time.

ALAN SIMPSON:

When he finished, there was just silence. I said, “What is all this s—? What are you doing?”

He said, “Just know that we’ll have to destroy him.”

ROBERT BORK JR., Son of Judge Bork:

And we were watching this on TV as we were drinking champagne in the counsel’s office. And I said, “Are you guys ready for this?” And they said, “Oh, yeah, don’t worry about it.” Well, they weren’t ready. Nobody was ready. I don’t think they had any clue what was coming.

NARRATOR:

What was coming was a full-on political assault led by liberal Democrats, with protests, phone banks and attack ads.

FRANK LUNTZ, Republican pollster:

It was the first moment that you saw all-out war over a Supreme Court nominee. It’s the first example of the politics of destruction of the modern era.

Bork Under Fire

MALE NEWSCASTER:

The name and future of Robert Bork tops the agenda in Washington this morning—

FEMALE NEWSCASTER:

—and nowhere is the debate hotter than at the confirmation hearings for Supreme Court nominee Robert Bork.

MALE ANNOUNCER:

This is an NBC News Special Report.

NARRATOR:

The Judiciary Committee hearings, led by the Democrats, were broadcast on national television.

TOM BROKAW:

It is a momentous day in Washington, D.C.—

MALE NEWSCASTER:

Judge Robert Bork began his battle for confirmation to the Supreme Court today—

ROBERT BORK JR.:

It was kind of tense. It was tense. It was TV lights—very hot TV lights. There’s a certain sense, when you’re the family member, that there’s absolutely nothing you can do.

NARRATOR:

It was a cast designed for classic television drama. The attackers: Biden, Heflin, Metzenbaum, Leahy and Kennedy.

MALE REPORTER:

Judge Bork looks at Sen. Kennedy, and Sen. Kennedy now recognizes him.

SEN. TOM DASCHLE (D-SD), 1987-2005:

I was glued to the television like everybody else. I was as smitten by all the television theatrical drama that everybody else was.

NARRATOR:

And there were the defenders: conservative Republicans Simpson and Grassley.

MALE REPORTER:

As we’re going down the line here, this is the nominee, and he’s sort of the supplicant here before these senators. They do hold the power of office over him, don’t they?

SEN. JOE BIDEN (D-DE):

The hearing will come to order, please.

TOM DASCHLE:

Somebody was going to win and somebody was going to lose. How was this going to play out? And that, I think, had a gripping effect on an audience.

JOE BIDEN:

I welcome everyone here this morning. Judge Bork—

NARRATOR:

Joe Biden was the chairman of the committee and at the time in his first bid for president.

ETHAN BRONNER:

Because Joe Biden was running for president, his staff set the hearing room up in a way to elevate him and to make him shine and turned it into a kind of a TV reality show event.

JOE BIDEN:

The Senator Minority Leader, Republican Leader—

ETHAN BRONNER:

They chose particular places where cameras could go that would be the least flattering for Robert Bork.

JOE BIDEN:

Judge, do you swear to give the truth, the whole truth and nothing but the truth, so help you God?

JUDGE ROBERT BORK:

I do, Mr. Chairman.

JOE BIDEN:

Thank you. Duly sworn.

ETHAN BRONNER:

And also, when Joe Biden made his opening statement—

JOE BIDEN:

In passing on this nomination to the Supreme Court—

ETHAN BRONNER:

—his aides were not behind him, so there was a kind of Oval Office‒quality almost to what he had to say. So there was quite a lot of stagecraft involved as well by Biden.

NARRATOR:

All eyes were on Biden’s adversary, Robert Bork.

LINDA GREENHOUSE:

So the question was, “OK, how is this guy going to present himself? What’s going to be the drill?”

TED KENNEDY:

Many controversial statements he has made as a professor and a judge I’ve compiled—

NARRATOR:

For five days they clashed.

SEN. HOWELL HEFLIN (D-AL):

Can you derive a right to an abortion from the Constitution?

NARRATOR:

They challenged Bork’s views on controversial issues.

SEN. HOWARD METZENBAUM (D-OH):

Yesterday you said women and Blacks who know your record do fear you.

NINA TOTENBERG:

It was epic. I mean, they were discussing very serious things.

SEN. PATRICK LEAHY (D-VT):

Do we have a constitutional right to speak recklessly?

NINA TOTENBERG:

Busing and—

SEN. HOWELL HEFLIN (D-GA):

—were made in busing—

NINA TOTENBERG:

—law and order, privacy—

JOE BIDEN:

Would we allow the police to search the sacred precincts of—

NINA TOTENBERG:

—abortion rights—

ROBERT BORK:

—the human life bill, which would have changed Roe against Wade—

NINA TOTENBERG:

—rights to determine all kinds of personal autonomy.

JOE BIDEN:

—you do not believe that there is a general right of privacy that is in the Constitution?

ROBERT BORK:

Not one derived in that fashion—

NARRATOR:

Bork’s advisers told him to be succinct, not lecture the senators.

ROBERT BORK:

I’ll be happy to answer the committee’s questions.

NARRATOR:

He did not follow their instructions.

ROBERT BORK:

Oh, no. Oh, no, Senator.

SEN. ARLEN SPECTER(R-PA):

Well, let me, let me pick that strain up—

ROBERT BORK:

All right. But I’d like to get on the record right now that I don’t feel very free to disregard what Congress decided, that the mere fact that a law is outrageous is not enough to make it unconstitutional—

ROBERT BORK JR.:

I didn’t think it was going well. I just thought it was torture. You want to tap your dad on the shoulder and say, “I would say it this way.” Can’t do that.

ALAN SIMPSON:

They have been hammering you with that thing for five days.

NARRATOR:

Near the end, in an effort to save him, Bork supporter Wyoming Sen. Alan Simpson asked him one last question.

ALAN SIMPSON:

Why do you want to be an associate justice of the United States Supreme Court?

NARRATOR:

Many believe Bork’s answer was the death knell of his nomination.

ROBERT BORK:

—and I think it would be an intellectual feast.

FEMALE REPORTER:

Some more bad news for Supreme Court nominee Judge Robert Bork—

MALE NEWSCASTER:

—by telling the senators the first attraction of the Supreme Court is the intellectual pleasure of it—

ALAN SIMPSON:

That seemed to be a big thing, “Oh, intellectual feast.” Oh, what the hell, you know, but that’s Washington.

MARK GITENSTEIN, Fmr. Chief Counsel, Judiciary Cmte.:

And instead of saying, “I want to do justice and show mercy and protect the rights of individuals,” he says, “It’ll be an intellectual feast.” And most people said, “Who’s the dinner?” [laughs]

SENATE CHAIRMAN:

Regular order will be followed. The clerk will continue calling the roll.

SENATE CLERK:

Mr. Bumpers, “No.”

Mr. Burdick. Mr. Burdick, “No”—

NARRATOR:

Bork’s candor had become a liability—

SENATE CLERK:

Mr. Chafee. Mr. Chafee, “No.”

NARRATOR:

—for Democrats and even some liberal Republicans. It was a resounding defeat for Bork and the conservative Republicans: 42-58.

SENATE CLERK:

Mrs. Kassebaum.

Mr. Cranston, “No.”

Mr. Kennedy. Mr. Kennedy, “No.”

ALAN SIMPSON:

The job was to cut this guy down. “Get borked.” It’s now in the dictionaries of the United States and the world. It’s called “getting borked.”

NARRATOR:

Joe Biden, the chairman, got much of the credit for bringing Bork down.

MARK GITENSTEIN:

He’s proud of what we did on the court. We shaped the direction of the court for 30 years. We kept that majority in place—basically the Warren Court consensus on the court, on a lot of these issues—in place for 30 years. Nothing to be ashamed of. Very, very important.

SENATE CLERK:

Senator from Kentucky.

SEN. MITCH McCONNELL (R-KY):

I thank the chair—

NARRATOR:

But Bork’s defeat was a searing experience for first-term Sen. Mitch McConnell.

Enraged, he took to the Senate floor.

MITCH McCONNELL:

And so to Robert Bork, you happen to be the one who set the new Senate standard that will be applied, in my judgment, by a majority of the Senate prospectively. Unfortunately, it got set over your dead body, so to speak, politically.

NARRATOR:

McConnell threatened that he and his Republican colleagues would use the same tactics when it mattered.

MITCH McCONNELL:

We’re going to do it when we want to. And when we want to is going to be when the president, whoever he may be, sends up somebody we don’t like.

JOSH HOLMES:

He’ll be darned if he’s going to allow them to just get away with taking somebody out without paying a price for it later on down the road.

MITCH McCONNELL:

And if we don’t like the philosophical leaning of the nominee—

NARRATOR:

It was a promise of revenge, a warning of what could happen if Republicans took control.

MITCH McCONNELL:

—nominees on a philosophical basis. The danger of that approach, of course, is—

A Vacancy on the Court

1991

MALE NEWSREADER:

Thurgood Marshall, a man who played a pivotal role in the redefinition of justice in America, is leaving the U.S. Supreme Court, and with his resignation—

NARRATOR:

When the nation’s first African American justice, Thurgood Marshall, retired, it was a pivotal moment for Sen. Mitch McConnell.

FEMALE NEWSREADER:

Thurgood Marshall is stepping down—

MALE NEWSREADER:

Thurgood Marshall announced—

NARRATOR:

—an opportunity to replace a liberal justice with a conservative.

MALE NEWSREADER:

Senators implied it would be good to get another minority member—

NARRATOR:

One name stood out: Clarence Thomas, a deeply conservative African American appeals court judge.

PRESIDENT GEORGE H.W. BUSH:

—that I will nominate Judge Clarence Thomas to serve as associate justice of the United States Supreme Court.

NARRATOR:

The White House was determined that Clarence Thomas was not going to be “borked.”

THEODORE OLSON:

The individuals in the George H.W. Bush administration knew what was coming. They remembered vividly what had happened with Robert Bork.

MALE REPORTER:

Clarence Thomas could not have been prepared for the mob of still photographers, TV cameras, reporters—

NARRATOR:

The Republicans built a war room. They prepped Thomas.

MALE NEWSREADER:

Senate hearings began on the Supreme Court nomination of—

NARRATOR:

They warned him it could get ugly.

MALE NEWSREADER:

Clarence Thomas, a Black conservative originally from Pin Point, Georgia—

NARRATOR:

Once again, the proceedings would be a television event, here in the room where the Bork hearings captivated Americans.

MALE REPORTER:

—see Judge Thomas now with the chairman of the Judiciary Committee—

NARRATOR:

The cast was familiar: Biden, Kennedy, Simpson, Metzenbaum, Heflin.

MALE REPORTER:

—but we don’t know how he’s going to comport himself—

NARRATOR:

This time the Republicans had an advantage. It would be hard for Biden and the Democrats to forcefully take on an African American nominee.

SEN. CAROL MOSELEY BRAUN (D-IL), 1993-99:

When the hearings started, I was reminded of the fact that this nominee was supposed to replace Thurgood Marshall as the Black person on the United States Supreme Court.

JOE BIDEN:

The hearing will come to order. Good morning, Judge. Welcome to the blinding lights. It’s a pleasure to have you here.

NINA TOTENBERG:

Politically, they were in a very difficult position. It’s very difficult to attack an African American judge, and they wanted to befriend him, not attack him.

JOE BIDEN:

Heck, you’re six, seven years younger than—I’m 48. How old are you, Judge? Forty-two, -three?

CLARENCE THOMAS:

Well, I’ve aged over the last 10 weeks [laughter], but I’m 43.

JOE BIDEN:

Forty-three years old—

NARRATOR:

Thomas’ White House handlers, sitting behind him, waited for the Democrats’ questions.

THEODORE OLSON:

He was advised—I know this—to be very careful, to be very modest. They’re going to ask you about every controversial issue that has ever come before the Supreme Court.

CLARENCE THOMAS:

In the area of civil rights—

NARRATOR:

Unlike Bork, Thomas wouldn’t be so candid.

CLARENCE THOMAS:

—I don’t remember or recall participating—

NINA TOTENBERG:

He was like a steady brick wall. He just wasn’t going to answer anything, and he didn’t.

CLARENCE THOMAS:

I think that to take a position would undermine my ability to be impartial—

LINDA GREENHOUSE:

Sen. Biden was determined to try to probe that and take it as a Bork battle redux. But unlike Bork, who said, “Yeah, these are my views, like them or not,” Thomas disavowed everything.

CLARENCE THOMAS:

What I’m trying to do, Senator, is to respond to your question and at the same time not offer a particular view on this difficult issue of abortion that would undermine my—

LINDA GREENHOUSE:

It was going to work; he was squeaking through.

MALE NEWSREADER:

President Bush said he has no doubt Clarence Thomas will be confirmed—

FEMALE NEWSREADER:

Confirmation hearings continue this morning in Washington for Clarence Thomas—

NARRATOR:

It had been eight days of hearings; the committee would soon vote.

NINA TOTENBERG [on radio]:

If Clarence Thomas is confirmed to the Supreme Court, his nomination is certainly the most controversial since Robert Bork’s—

NARRATOR:

But National Public Radio reporter Nina Totenberg heard something unusual.

NINA TOTENBERG:

Biden says something about, “People have tried to smear you with personal allegations.”

JOE BIDEN:

I believe there are certain things that are not at issue at all, and that is his character or characterization of his character.

NARRATOR:

Totenberg was surprised; no issues of character had been raised during the hearings.

NINA TOTENBERG:

And so I just started kicking tires, and I managed to get stuff.

NARRATOR:

She discovered a secret: allegations of sexual harassment by Clarence Thomas.

NINA TOTENBERG:

And pretty soon I had Anita Hill’s name, and I called her up.

NARRATOR:

Anita Hill had worked with Thomas at the Equal Employment Opportunity Commission.

NPR: Weekend Edition

October 1991

NINA TOTENBERG [on radio]:

According to Hill’s affidavit, Thomas talked about pornographic materials depicting individuals with large penises or breasts involved in various sex acts.

ANITA HILL [on radio]:

Here is a person who is in charge of protecting rights of women. He is also, really, violating the laws that he’s there to enforce.

NINA TOTENBERG:

It was just a giant explosion. [laughs] I mean, I walked up to Capitol Hill. It was like a mushroom cloud.

MALE NEWSREADER:

Good evening. We begin tonight with the potential for political explosion on Capitol Hill.

FEMALE NEWSREADER:

Clarence Thomas ran into trouble today—

MALE NEWSREADER:

Questions are growing over charges of sexual harassment against Thomas—

NARRATOR:

As the story broke, Sen. Mitch McConnell rushed to the Senate floor.

MITCH McCONNELL:

As soon as the president announced his choice, the special interest groups lined up their firing squad and vowed to bork him and to kill him politically. The process is being hijacked—

NARRATOR:

McConnell saw the allegations against Thomas as yet another liberal takedown.

FRANK LUNTZ:

McConnell understands implication and consequence better than any United States senator. When you vote on legislation in the House and Senate, you’re playing for the next election. When you put in a judge, you’re playing for the next generation.

MALE NEWSREADER:

The sexual harassment storm around Clarence Thomas is intensifying.

NARRATOR:

Now McConnell would watch as Anita Hill threatened to derail Thomas’ nomination.

FEMALE NEWSREADER:

The stage is set for what everyone anticipates will be a brutal hearing.

JOE BIDEN:

Professor, do you swear to tell the whole truth and nothing but the truth, so help you God?

ANITA HILL:

I do.

JOE BIDEN:

Thank you.

JANE MAYER, Co-author, Strange Justice:

It seems to have been a nightmare for Joe Biden. As a man he felt uncomfortable about it. As a white man, he felt uncomfortable taking Clarence Thomas, a Black man, on about it. And the whole subject matter just made him incredibly uncomfortable.

JOE BIDEN:

Can you tell the committee what was the most embarrassing of all the incidences that you have alleged?

ANITA HILL:

I think the one that was the most embarrassing was his discussion of—of pornography involving these women with large breasts and—and engaged in a variety of sex with different people or animals. That was the thing that embarrassed me the most and made me feel the most humiliated.

CAROL MOSELEY BRAUN:

Here in Illinois, women were just mesmerized by the hearings, outraged at what had happened. They looked up and saw a very nondiverse United States Senate Judiciary Committee. There was not a woman there, not to mention person of color. It was just all these cookie cutters, and folks were really horrified by it.

ANITA HILL:

One of the oddest episodes I remember—

NARRATOR:

The Republicans had watched Bork attacked for his ideology; now it was Thomas’ character that was under assault, and they would go all-out to defend their nominee.

ARLEN SPECTER:

My purpose is to find out what happened.

NARRATOR:

Biden’s close friend, Republican Arlen Specter, led the charge.

ARLEN SPECTER:

I find the references to the alleged sexual harassment not only unbelievable, but preposterous.

NARRATOR:

He cast doubt on her memory.

ARLEN SPECTER:

How reliable is your testimony on events that occurred eight, 10 years ago?

JELANI COBB, The New Yorker:

There’s this array of white men who were treating Anita Hill as kind of a hostile witness in simply attesting to what her experience with sexual harassment had been in Clarence Thomas’ office.

ARLEN SPECTER:

You took it to mean that Judge Thomas wanted to have sex with you, but in fact he never did ask you to have sex, correct?

ANITA HILL:

No, he did not ask me to have sex.

ARLEN SPECTER:

So that was an inference that you drew?

ANITA HILL:

Yes, yes.

JANE MAYER:

She stood between Clarence Thomas and the Supreme Court. They had to destroy her in order to get him confirmed. If what she was saying was true, he had lied under oath.

JOE BIDEN:

Without objection it will be placed in the record. Again, I thank your family, thank you. Adjourned until 9 o’clock.

MALE NEWSREADER:

All America had its television sets tuned to the U.S. Senate—

MALE NEWSREADER:

Nothing like what happened today has ever happened before—

MALE NEWSREADER:

Washington, D.C., a city disgusted by the gutter politics played out on Capitol Hill.

NARRATOR:

But it wasn’t over. Inside the Senate offices, Clarence Thomas prepared to answer Anita Hill’s allegations.

Sen. Alan Simpson was in the room.

ALAN SIMPSON:

We sat with Thomas. And I told him my theory of political life: An attack unanswered is an attack believed. Not only that, but agreed to. And he was teary.

But I said, “You must have something to say.” He said, “I do.” He said, “I really do have something to say.”

CLARENCE THOMAS:

This is a circus. It’s a national disgrace. And as far as I’m concerned, it is a high-tech lynching for uppity Blacks who in any way deign to think for themselves, to do for themselves, to have different ideas.

JEFF BLATTNER:

I remember sitting behind a senator and hearing that and just feeling like a bomb had gone off in the room. And it sucked all the oxygen out of the room.

CLARENCE THOMAS:

And it is a message that unless you kowtow to an old order, this is what will happen to you. You will be lynched, destroyed, caricatured by a committee of the U.S. Senate rather than hung from a tree.

SENATE CLERK:

The question is on the confirmation of the nomination of Clarence Thomas of Georgia. The clerk will call the roll.

FRANK LUNTZ:

Up to Robert Bork, there was a sense of civility to this, that you could disagree without destroying.

Robert Bork changed that, and Clarence Thomas confirmed it. And with the Clarence Thomas nomination, everybody was watching.

SENATE CLERK:

On this vote, the “yeas” are 52 and the “nays” are 48. The nomination of Clarence Thomas of Georgia is hereby confirmed.

NARRATOR:

While Biden and most Democrats voted “no,” Clarence Thomas prevailed. He was 43 years old; he vowed to stay on the court for 43 more years.

McConnell’s Power Play

NARRATOR:

In the years after Thomas’ confirmation, McConnell watched as Democratic and Republican presidents tried to tip the balance of the court.

MALE NEWSREADER:

President Clinton today nominated Ruth Bader Ginsburg, a 60-year-old judge—

NARRATOR:

With Republicans in the minority, Bill Clinton placed Ruth Bader Ginsburg and Stephen Breyer on the bench.

MALE NEWSREADER:

The president sent Congress the name of his nominee to fill the seat—

NARRATOR:

George W. Bush, with a Republican Senate, put John Roberts and Samuel Alito on the court.

MALE NEWSREADER:

Barack Obama is projected to be the next president of the—

NARRATOR:

With Democrats back in control, Barack Obama appointed Sonia Sotomayor and Elena Kagan.

MALE NEWSREADER:

Still, many Republicans are asking if she’s the right person for the job.

NARRATOR:

Through it all, McConnell had been climbing to power inside the Senate: majority whip; Republican leader; and finally, majority leader.

REP. JOHN YARMUTH (D-KY):

There’s nobody who’s more focused on political conquest than he is. There may not have ever been anybody who has spent his entire life calculating. He knows more than everybody else.

It was how much he could win and how much power he could achieve.

NARRATOR:

McConnell had real power, and still holding on to that grievance about what happened to Robert Bork, he waited for the right moment to use it.

MALE CNN ANNOUNCER:

This is CNN breaking news—

FEMALE NEWSREADER:

Breaking news just in to us here at CNN. United States Supreme Court Justice Antonin Scalia has died. According to—

ALEC MacGILLIS, Author, The Cynic:

Scalia is found dead in his bed one day, and what to do in this moment of crisis becomes probably the defining moment of Mitch McConnell’s career.

MALE NEWSREADER:

And breaking news: U.S. Supreme Court Justice Antonin Scalia—

NARRATOR:

McConnell immediately understood the political implications of Scalia’s death.

JOSH HOLMES:

Within a matter of moments, Mitch McConnell had a decision to make: Was he going to turn over entire control of the Supreme Court to Barack Obama at the end of his tenure? Or was he going to make the decision as leader of the Senate that they weren’t going to confirm any nominee?

MALE NEWSREADER:

With that vacancy, the question is will a Republican-controlled Senate—

NARRATOR:

President Barack Obama’s replacement would give Democrats a five-justice majority on the court.

PETER BAKER, The New York Times:

Mitch McConnell doesn’t even wait for the day to end after Antonin Scalia dies to put out a statement saying, in effect, “We’re not going to let President Obama replace him.”

MALE NEWSREADER:

Majority Leader Mitch McConnell just releasing a statement—

MALE VOICE [reading McConnell press release]:

—this vacancy should not be filled until we have a new president.

JELANI COBB, Author, The Substance of Hope:

He points to the fact that they’re in the last year of Obama’s term, and that’s why they shouldn’t have this seat filled, as if somehow or other Obama’s presidency ends before January of 2017.

NINA TOTENBERG:

It doesn’t matter if you name anybody or not, I’m—we’re not considering anybody because it’s too close to the election.

MALE INTERVIEWER:

How shocking was that to you?

NINA TOTENBERG:

[laughs] It was amazing to me. I mean, they can say, “Oh, there’s precedent.” This was unprecedented.

March 16, 2016

FEMALE NEWSREADER:

Four and a half weeks after Justice Scalia died, today President Obama—

MALE NEWSREADER:

Friendly crowd in the Rose Garden there as President Obama nominates Merrick Garland—

NARRATOR:

With 10 months left in his presidency, Obama was undeterred by McConnell.

PRESIDENT BARACK OBAMA:

Today, I am nominating Chief Judge Merrick Brian Garland to join the Supreme Court.

DARLENE SUPERVILLE:

President Barack Obama’s thinking at the time was that by nominating Merrick Garland and putting forward a candidate that he thought was qualified, that he might have been able to persuade senators to lean on Sen. McConnell to allow the confirmation hearings to go forward.

MERRICK GARLAND:

Thank you, Mr. President. This is the greatest honor of my life, other than Lynn agreeing to marry me 28 years ago.

THEODORE OLSON, Solicitor General, G.W. Bush:

Here is a man of distinguished education, distinguished background. This is the kind of person that should be on the Supreme Court. And if it’s Obama who is president, I was thrilled that he was appointing someone like Merrick Garland.

NARRATOR:

Joe Biden, now vice president, would work his connections in the Senate to try to win over Republican support.

FEMALE NEWSREADER:

Five Republican senators have agreed to talk with Garland—

MALE NEWSREADER:

—a handful of Republicans to break ranks, including some facing tough reelection bids.

NARRATOR:

McConnell had a mini-revolt on his hands.

MALE NEWSREADER:

He’ll be the first Republican senator to have a face-to-face meeting with Judge Garland—

JEFF FLAKE:

I met with Merrick Garland. I liked him. That’s a person who would have gotten 98 votes or 100 votes in the 1990s, just a few years before.

FEMALE NEWSREADER:

—blasting his party’s leadership for stonewalling the nomination process—

SEN. SUSAN COLLINS (R-ME):

To not even allow the Judiciary Committee to hold a hearing on his nomination just did not sit right with me.

MALE NEWSREADER:

Mitch McConnell joins us now from Capitol Hill. Senator, thanks for being here.

NARRATOR:

He fought back, hitting the airwaves.

MITCH McCONNELL:

The right-of-center world does not want this vacancy filled by this president.

We’re not giving a lifetime appointment to this president on the way out the door to change the Supreme Court for the next 25 or 30 years.

NINA TOTENBERG:

Sen. Moran from Kansas said he thought maybe there should be a hearing. And McConnell just said to him, “You keep talking like that and I’m running a primary opponent against you,” and Moran backed off.

McConnell was ruthless and brilliant.

NARRATOR:

McConnell kept the Republicans in line. There would be no hearings; no votes; no consideration of Judge Garland.

SEN. HEIDI HEITKAMP (D-ND), 2013-19:

The one thing that I’ve learned about Mitch is if he says this is the way it is, that’s the way it is.

ALAN SIMPSON:

[laughs] Well, I don’t ever question McConnell. I mean, I worked with him. You don’t want to mess with McConnell.

MALE NEWSREADER:

Democrats are outraged by Senate Majority Leader Mitch McConnell—

NARRATOR:

Mitch McConnell had done what had never been done—

MALE NEWSREADER:

Sen. McConnell and his Democratic counterpart, Sen. Harry Reid, already at odds—

NARRATOR:

He’d blocked any consideration of a Supreme Court nominee.

Now he needed one more thing: a Republican president.

MALE ANNOUNCER:

Donald Trump will be the 45th president of the United States.

JOSH HOLMES:

Sen. McConnell turned to his colleague and said, “Looks like we’re going to be making America great again.” I have to think that a big part of that is what he saw as a coming to fruition of the plans that he had for the Supreme Court.

NARRATOR:

With Trump in the White House, Mitch McConnell would be able to fill Scalia’s seat. Within months, conservative favorite Neil Gorsuch joined the court.

FEMALE NEWSREADER:

—confirmed as Justice Gorsuch—

NARRATOR:

Then, a year later, another opportunity—

MALE NEWSREADER:

—monumental moment for the Supreme Court—

NARRATOR:

Veteran Justice Anthony Kennedy unexpectedly resigned.

JACK GOLDSMITH, Asst. Attorney General, G.W. Bush:

Kennedy really was the middle of the court. So it’s a really serious moment; the most serious moment in the balance of the court, really, since even before Bork.

NARRATOR:

Mitch McConnell understood the stakes. Kennedy’s replacement could shift the court further to the right.

The Battle Over Kavanaugh

MALE NEWSREADER:

President Trump’s pick is in for the next Supreme Court nominee.

FEMALE NEWSREADER:

Brett Kavanaugh to replace retiring Justice Anthony Kennedy—

NARRATOR:

McConnell and Trump again swung into action.

MALE NEWSREADER:

The president has now nominated Brett Kavanaugh to the U.S. Supreme Court.

NARRATOR:

The president nominated Judge Brett Kavanaugh.

MALE NEWSREADER:

This is now the second time in 18 months the president—

NINA TOTENBERG:

Kavanaugh is the perfect McConnell nominee. He’s very conservative on economic issues, on executive power issues. He’s the perfect blending of establishment and sort of red state‒based politics.

NARRATOR:

At the confirmation hearings, the Democrats immediately put up a fight.

SEN. KAMALA HARRIS (D-CA):

Mr. Chairman, I’d like to be recognized to ask a question—

SEN. MAZIE HIRONO (D-HI):

Mr. Chairman, it’s a pending motion—

SEN. AMY KLOBUCHAR (D-MN):

—if we don’t even know what the rules are, how can we—

SEN. CHUCK GRASSLEY (R-IA):

I would like to respond to—

KAMALA HARRIS:

Mr. Chairman—

CHUCK GRASSLEY:

Who wanted—

DICK DURBIN:

Mr. Chairman, we waited for more than a year with a vacancy on the Supreme Court. The treatment was shabby of Merrick Garland and President Obama’s nominee.

CARL HULSE, Author, Confirmation Bias:

Democrats are really mad about Garland that happened in 2016. Very recent history.

SEN. LINDSEY GRAHAM (R-SC):

People see through this.

CARL HULSE:

Republicans are still mad about Bork.

LINDSEY GRAHAM:

—my friends on the other side, you can’t lose the election and pick judges. If you want to pick judges, you better win.

CARL HULSE:

This stuff is now intensely polarized and superpartisan.

NARRATOR:

And as the Republican-led hearings got underway, Brett Kavanaugh would follow the Clarence Thomas playbook.

BRETT KAVANAUGH:

I can’t give you an answer on that hypothetical question.

Senator, that sounds like a hypothetical. I—

NARRATOR:

He wouldn’t engage.

BRETT KAVANAUGH:

That’s the hypothetical that you’re asking me—

Well, Senator, I think that hypothetical that you’re asking is—

—asking me a hypothetical that, uh—about any statutes that you’re asking me—

NARRATOR:

From his office, McConnell watched the hearings. It all seemed to be going smoothly.

JOSH HOLMES:

What you fear is the unknown. You don’t know what you don’t know. And if there is something out there, some bombshell to drop, or some way of captivating media attention, then you could have problems.

FEMALE NEWSREADER:

Dropping a bombshell exactly one week before the committee is set to vote—

PETER BAKER:

And then you begin to see the newspapers’ vague references to anonymous allegations that had been lodged against Brett Kavanaugh about his conduct.

FEMALE NEWSREADER:

—about a woman in high school.

MALE NEWSREADER:

An allegation from his past—

NARRATOR:

The allegation: sexual assault.

JANE MAYER, The New Yorker:

Word of her leaks out without her name at first, and then when there’s—the news breaks, just like with Anita Hill, her name is leaked.

FEMALE NEWSREADER:

Her name is Christine Blasey Ford—

FEMALE NEWSREADER:

The woman’s name is Christine Blasey Ford—

MALE NEWSREADER:

Christine Blasey Ford, research psychologist and professor at Palo Alto University, came forward—

NARRATOR:

McConnell wouldn’t back down from the coming fight.

JANE MAYER:

I think he was furious. This was the torpedo that he dreaded.

FEMALE NEWSREADER:

Christine Blasey Ford described Kavanaugh as stumbling drunk—

NARRATOR:

He was worried about losing the Senate in the upcoming midterms; he had to get Kavanaugh confirmed, fast.

NINA TOTENBERG:

You know, those words of McConnell, “You will rue the day,” back in the Bork fight? Those equally applied to him if he lost the Kavanaugh fight, because the Democrats, if they controlled the Senate after this election—he would rue the day of what he’d done in Garland.

MALE SPEAKER:

The majority leader is recognized.

NARRATOR:

McConnell launched a counterattack.

MITCH McCONNELL:

Senate Democrats and their allies are trying to destroy a man’s personal and professional life on the basis of decades-old allegations that are unsubstantiated—

NARRATOR:

Bork. Thomas. Now Kavanaugh. The fight for the court had become personal. McConnell blamed the Democrats.

MITCH McCONNELL:

Democrats wouldn’t let a few inconvenient things get between them and a good smear. It’s despicable.

PETER BAKER:

He’s never faced a fight like this. He never faced one where he could go down like this. And it was right there on the razor’s edge.

MALE NEWSREADER:

Just moments away now from the historic testimonies of Christine Blasey Ford before the Senate Judiciary Committee—

FEMALE NEWSREADER:

Dr. Ford has arrived here on Capitol Hill to testify in public for the first time—

FEMALE NEWSREADER:

It will certainly be an historic day on Capitol Hill.

ED O’KEEFE, CBS News:

Remember, nobody had seen her, and nobody had heard from her. Not even the senators. So it was a total surprise.

CHRISTINE BLASEY FORD:

I am here today not because I want to be. I am terrified. I am here because I believe it is my civic duty to tell you what happened to me while Brett Kavanaugh and I were in high school.

ED O’KEEFE:

When you realized how genuinely terrified she was to be there—it shocked a lot of the older, longer-serving senators that once again this issue was being brought into the public sphere.

CHRISTINE BLASEY FORD:

I believed he was going to rape me. I tried to yell for help. When I did, Brett put his hand over my mouth to stop me from yelling. This is what terrified me the most and has had the most lasting impact on my life. It was hard for me to breathe, and I thought that Brett was accidentally going to kill me.

SEN. AMY KLOBUCHAR (D-MN), Judiciary Cmte.:

It was, of course, a larger-than-life moment. Christine Blasey Ford had to go before the eyes of a nation and the world.

HEIDI HEITKAMP:

I thought she was enormously courageous, enormously persuasive.

SEN. SHELDON WHITEHOUSE (D-RI), Judiciary Cmte.:

She was very polite and just looked dead honest.

SUSAN COLLINS:

It was a huge burden on her to come forward.

JEFF FLAKE:

It was impossible not to be riveted with her testimony. She was compelling.

NARRATOR:

Some of the senators that day had also been at the Clarence Thomas hearings.

Patrick Leahy was one.

PATRICK LEAHY:

When Dr. Ford testified, I asked her, “What do you remember of that incident?” And I think everybody in that hearing remembers her answer.

CHRISTINE BLASEY FORD:

The laughter, the laugh—the uproarious laughter between the two, and they’re having fun at my expense. I was, you know, underneath one of them while the two laughed—two friends having a really good time with one another.

NARRATOR:

It looked bad for Brett Kavanaugh and the Republicans.

FEMALE NEWSREADER:

This is over. This was devastating.

MALE NEWSREADER:

I believe those who wanted to believe her, did.

MALE NEWSREADER:

The mood among Republicans on the Hill was one of gloom—

JEFF FLAKE:

We had a meeting right after her testimony. And I could tell that my colleagues were moved, and they were saying, “He’d better be good. [laughs] He’d better have an answer, because she sounds very credible.”

FEMALE NEWSREADER:

The worst-case scenario for Kavanaugh and his defenders was what just transpired.

NARRATOR:

At the White House, the president of the United States had also been watching.

JOSH HOLMES:

Both the president and Leader McConnell found her testimony to be incredibly compelling.

KELLYANNE CONWAY, Fmr. Counselor to Pres.Trump:

I was in the White House the entire day, including watching the testimony of both Ford and Kavanaugh. The president watched it live.

And the president and I have both said, each of us have said publicly, she gave—she rendered compelling testimony.

NARRATOR:

The president picked up the phone. On the other end: Mitch McConnell.

PETER BAKER:

Both of them are kind of testing each other a little bit. “Where are you at on this?” “How strong are you?”

And McConnell basically says to the president, “You don’t worry about me. I’m strong as mule piss.” That’s his quote: “I’m strong as mule piss.” In other words, he’s not going to let up; he’s not going to give up; he’s not going to surrender.

Kavanaugh Fights Back

FEMALE NEWSREADER:

To say that everything that could have gone wrong for Brett Kavanaugh has is an understatement—

MALE NEWSREADER:

The impetus is on Judge Kavanaugh. They did not have the votes in the Senate—

FEMALE NEWSREADER:

Do not underestimate the importance of the next few hours for Brett Kavanaugh. He is about—

THEODORE OLSON:

At some point, if you poke a stick and you torment that person and you attack that person, at some point, that individual’s going to fight back.

BRETT KAVANAUGH:

I categorically and unequivocally deny the allegation against me by Dr. Ford. I never had any sexual or physical encounter of any kind with Dr. Ford.

JANE MAYER:

It was like watching Clarence Thomas all over again. This was another version of the high-tech lynching.

BRETT KAVANAUGH:

This confirmation process has become a national disgrace.

But you have replaced advice and consent with search and destroy.

NARRATOR:

Clarence Thomas had invoked race; now Brett Kavanaugh launched a partisan attack on the Democrats.

BRETT KAVANAUGH:

This whole two-week effort has been a calculated and orchestrated political hit fueled with apparent pent-up anger about President Trump, revenge on behalf of the Clintons and millions of dollars in money from outside left-wing opposition groups.

JANE MAYER:

It has become this completely politicized drama. He took the allegations away from Christine Blasey Ford and turned it into a huge fight between Democrats and Republicans. He’s trying to rally all the Republicans to his side.

NARRATOR:

Kavanaugh had become a combatant in the war between Republicans and Democrats.

PATRICK LEAHY:

Does this reflect what you are? Does this yearbook reflect your focus on academics—

NARRATOR:

They squared off over his high school yearbook—

PATRICK LEAHY:

That’s easy, “yes” or “no.” You don’t have to filibuster—

NARRATOR:

—and his drinking.

BRETT KAVANAUGH:

Freshman—no, no, no, no, no. You’ve got this up, I’m gonna, I’m gonna talk about my high school—

PATRICK LEAHY:

—I thought only the Senate could filibuster—

BRETT KAVANAUGH:

No, no, I’m gonna talk—

SEN. ORRIN HATCH (R-UT):

Let him answer!

BRETT KAVANAUGH:

I’m gonna talk about my high school record if you’re going to sit here and mock me.

CHUCK GRASSLEY:

Sen. Graham—

NARRATOR:

On the Republican side, Lindsey Graham led the fight.

LINDSEY GRAHAM:

This is the most unethical sham since I’ve been in politics. Boy, you all want power. God, I hope you never get it. I hope the American people can see through this sham.

God, I hate to say it, because these have been my friends, but let me tell you, when it comes to this—you’re looking for a fair process? You came to the wrong town at the wrong time, my friend. This is not a job interview; this is hell.

This is going to destroy the ability of good people to come forward because of this crap. Your high school yearbook!

PETER BAKER:

It serves to rally Republicans and make it an “us versus them” kind of issue. And if it’s an “us versus them” kind of issue, when you have the majority, that’s what you want.

SENATE PRESIDENT:

The clerk will call the roll.

SENATE CLERK:

Mr. Cruz; Mrs. Ernst; Mr. Flake; Mr. Gardner; Ms. Duckworth—

NARRATOR:

With McConnell’s Republicans almost entirely in line—

SENATE CLERK:

Mr. Toomey—

NARRATOR:

—Brett Kavanaugh was confirmed.

SENATE CLERK:

Mr. Udall—

NARRATOR:

Partisanship would now reign.

JANE MAYER:

More than any of the other fights, the Kavanaugh nomination hearings really ended up tarnishing the court’s reputation as an apolitical institution. What seemed like a sort of shocking freak occurrence when it happened with Bork now seems like a fait accompli with Kavanaugh. He now is up there on the bench, and everybody assumes it’s only because of politics.

NARRATOR:

With Kavanaugh’s confirmation, McConnell had moved the court further to the right.

But then, just over a month before the 2020 election, the death of the court’s most prominent liberal: Ruth Bader Ginsburg.

Securing the Court

NARRATOR:

Once again, it was Mitch McConnell’s moment. He was ready.

JOSH HOLMES:

This is a conversation that he has been having with his members at this point for a year or more. And McConnell made it very clear to his colleagues that if there is a vacancy, whomever that vacancy is presented by, we will fill it.

NARRATOR:

To McConnell it didn’t matter that it was only weeks before the election and that he’d opposed filling a seat in the last year of the Obama presidency.

DICK DURBIN:

The fact that it was occurring while the presidential election was underway, unprecedented. It’s never happened in the history of the Senate. For all of their explanations and excuses, it’s never been done. And particularly in light of what happened four years ago, it really seemed to be hypocritical.

NARRATOR:

But McConnell shrugged off the charges of hypocrisy.

THEODORE OLSON:

It wouldn’t faze Sen. McConnell to be called “ruthless” or “determined” or whatever adjectives or labels people might put on his behavior. He did it because he could.

DONALD TRUMP:

Today it is my honor to nominate Judge Amy Coney Barrett—

NARRATOR:

With Election Day fast approaching—

LINDSEY GRAHAM:

Do you solemnly swear that the testimony you’re about to give this committee—

NARRATOR:

—the hearings for Amy Coney Barrett were a rush job.

AMY CONEY BARRETT:

I do.

DARLENE SUPERVILLE:

Everything moved really rapid-fire fast. And, of course, the goal was to have her take her seat before the Nov. 3 election.

LINDSEY GRAHAM:

The hearing to confirm—

MARK LEIBOVICH, The New York Times Magazine:

He said, “We’re here to confirm Justice Barrett.” “Confirm,” which basically gave away the whole deal right there. It’s like, “We’re not considering anything, we’re just here to vote.”

LINDSEY GRAHAM:

This is probably not about persuading each other unless something really dramatic happens. All Republicans will vote “yes” and all Democrats will vote “no.”

DICK DURBIN:

It was done in a hurry-up fashion. There was not even the routine investigation of opinions and writings and speeches. This was done in a hurry, and it showed.

LINDSEY GRAHAM:

To my Democratic colleagues—

NARRATOR:

The partisanship was on full display.

RICHARD BLUMENTHAL:

Our Republican colleagues are riveted on rushing a judge through this sham process.

SHELDON WHITEHOUSE:

This was a hypocritical, tire-squealing 180 for many Republican colleagues.

NARRATOR:

Democrats complained.

MAZIE HIRONO:

—hypocritical, illegitimate process.

NARRATOR:

But in the minority, they were powerless to do anything.

CARRIE JOHNSON, NPR:

Mitch McConnell had the votes from start to finish, he knew it, and he behaved that way all along.

SENATE CLERK:

On this vote, the “yeas” are 52—

NARRATOR:

Barrett was confirmed: 52 Republicans voted “yes.”

SENATE CLERK:

—Amy Coney Barrett of Indiana—

NARRATOR:

All of the Democrats voted “no.”

SENATE CLERK:

—to the Supreme Court of the United States is confirmed!

THEODORE OLSON:

This most recent Barrett confirmation may have been the only one in recent memory that was purely partisan. It has become so bitterly partisan that the American people have no choice but to think of it as this individual is reflective of the people who vote against him or her or the people who vote for him or her.

NARRATOR:

Just a week before the presidential election, the new justice was sworn in.

AMY CONEY BARRETT:

I, Amy Coney Barrett, do solemnly swear—

CLARENCE THOMAS:

—that I will support and defend the Constitution—

NARRATOR:

Fellow conservative Clarence Thomas did the honors.

CLARENCE THOMAS:

—so help me God.

AMY CONEY BARRETT:

So help me God.

DARLENE SUPERVILLE:

For Sen. McConnell, this would be the achievement of his life’s goal. With Justice Barrett on the court now, you have a solid 6-3 conservative split on the court.

NARRATOR:

Three decades after Bork, it was now Mitch McConnell’s Supreme Court.

JOSH HOLMES:

He has been working towards this moment his entire professional career, and it was all coming to fruition. All of the judicial wars that started with Robert Bork and Justice Thomas, the Kavanaugh situation. Now was the moment that he finally got what he came for.

JEFF FLAKE:

He has succeeded in establishing a conservative court for the next couple of decades, at least. That’s an accomplishment, if you look at that alone. I think in the process, we’ve damaged another institution, the Senate. I don’t think that it’s a good trade overall. But in the end, will it have been worth it? I don’t know.

MALE NEWSREADER:

Senate Majority Leader Mitch McConnell has just won a seventh term—

NARRATOR:

On Election Day—

FEMALE NEWSREADER:

—McConnell is the longest-serving Republican senator—

NARRATOR:

—Mitch McConnell won another six years in the Senate.

MALE NEWSREADER:

We’ve reached a historic moment in this election—

NARRATOR:

He’ll face Joe Biden as president—an old adversary from the judicial wars.

FEMALE NEWSREADER:

—elected president of the United States—

NARRATOR:

Now the Supreme Court that Mitch McConnell built—

FEMALE NEWSREADER:

—conservative majority on the court for the foreseeable future—

NARRATOR:

—looms over the new president—

FEMALE NEWSREADER:

Meanwhile, Democrats are worried about the country’s future.

NARRATOR:

—and a Washington as divided as ever.

MALE NEWSREADER:

A lot of eyes are going to be on the Supreme Court—

FEMALE NEWSREADER:

—huge number of issues coming across the Supreme Court—

MALE NEWSREADER:

—among those issues are sex discrimination, gun rights, abortion and immigration.

MALE NEWSREADER:

—a huge array of enormously important issues.

SUPREME REVENGE (2019)

PRESIDENT DONALD TRUMP:

It is my honor and privilege to announce that I will nominate Judge Brett Kavanaugh to the United States Supreme Court.

FEMALE NEWSREADER:

Supreme Court showdown as Democrats are promising to fight President Trump—

MALE NEWSREADER:

The battle is on as Supreme Court nominee Brett Kavanaugh made the rounds—

SEN. CHUCK SCHUMER, D-N.Y.:

Now is the time to fight!

MALE NEWSREADER:

Democrats have already come out in total opposition to—

SEN. RICHARD BLUMENTHAL, D-Conn.:

You don’t belong in this building as a justice!

SEN. KAMALA HARRIS, D-Calif.:

Pay attention to this, guys! Pay attention!

THEODORE OLSON, Assistant Attorney General, President Reagan:

If he’s confirmed he’ll be on the court for 25 to 30 years. That’s six presidential terms.

SEN. SUSAN COLLINS, R-Maine:

People on both sides of the aisle very quickly took positions on Judge Kavanaugh before they knew anything about him.

SEN. JEFF FLAKE, R-Ariz.:

I’ll tell you, it was big drama. That room, there were more cameras—you could barely hear through the clicking whenever the judge would turn his head or make a motion that they wanted to capture.

REP. CHUCK GRASSLEY, R-Iowa:

Good morning. I welcome everyone to this confirmation hearing on the nomination of Judge—

KAMALA HARRIS:

Mr. Chairman.

CHUCK GRASSLEY:

—Brett Kavanaugh—

KAMALA HARRIS:

Mr. Chairman.

CHUCK GRASSLEY:

—to serve as associate justice—

KAMALA HARRIS:

Mr. Chairman, I’d like—

CARL HULSE, Author, “Confirmation Bias”:

Grassley is like 13 words into his remarks when they start badgering him.

CHUCK GRASSLEY:

You are out—you are out of order. I’ll proceed.

KAMALA HARRIS:

We cannot possibly move forward, Mr. Chairman, with this hearing—

CHUCK GRASSLEY:

I extend a very warm welcome—

KAMALA HARRIS:

We have not been given an opportunity—

ED O’KEEFE, CBS News:

The Democrats had agreed that weekend that they should do this.

SEN. CORY BOOKER, D-N.J.:

Mr. Chairman, I appeal to the chair to recognize myself or one of my colleagues—

CHUCK GRASSLEY:

You’re out of order.

CORY BOOKER:

Mr. Chairman, I appeal to be recognized, on your sense of decency and integrity—

RICHARD BLUMENTHAL:

Mr. Chairman, if we cannot be recognized, I move to adjourn—

CHUCK GRASSLEY:

The American people—

RICHARD BLUMENTHAL:

Mr. Chairman, I move to adjourn.

PROTESTER 1:

This is a mockery and a travesty of justice. This is a travesty of justice. We will not go back.

Cancel Brett Kavanaugh, adjourn the hearing.

PROTESTER 2:

You should have been a hero! Be a hero!

SEN. HEIDI HEITKAMP, D-N.D., 2013-19:

That’s no way to conduct a hearing. I think that the process was not becoming of the United States Senate.

SEN. JOHN CORNYN, R-Texas:

But this is the first confirmation hearing for a Supreme Court justice I’ve seen, basically, according to mob rule.

SEN. LINDSEY GRAHAM, R-S.C.:

This is shaping up to be the hypocrisy hearing. And that’s hard to do in the Senate.

PROTESTER 3:

(Unintelligible shouting)

NARRATOR:

It was only the first day of the Kavanaugh hearings.

SEN. ALAN SIMPSON, R-Wyo., Judiciary Committee, 1979-97:

It was the epitome of a totally broken system.

If Kennedy had been alive, or Heflin or Specter had been watching the Kavanaugh hearings, we would have puked.

MALE NEWSREADER:

A circus of protesters welcomed into the hearing room by the Democratic Party—

NARRATOR:

It looked like a product of the deep divisions in Washington today—

FEMALE NEWSREADER:

Destroying civility and sowing chaos—

NARRATOR:

But it had been decades in the making.

MALE VOICE:

Senators who disrupt Supreme Court hearings? They might as well be in the audience with the protesters.

NARRATOR:

And behind the scenes, one powerful Republican senator: Majority Leader Mitch McConnell.

JOSH HOLMES, Former McConnell Chief of Staff:

McConnell knows the game plan.

One of the reasons he’s as good at his job as he is, is because he can play his own hand of cards and he can also play his opponents’ hand of cards. He knows exactly what they’re trying to do.

NARRATOR:

Outmaneuvering Democrats, confirming conservative judges were McConnell’s specialties.

Brett Kavanaugh would be his crowning achievement.

NINA TOTENBERG, NPR:

It’s moving the court to a really very, very conservative court.

That’s McConnell’s dream from the time he was first in the Senate, and maybe his dream when he went into politics.

FEMALE NEWSREADER:

This is gonna be a rough battle on Capitol Hill, and it’s a very—

FEMALE NEWSREADER:

—loud PR campaign for and against his confirmation—

NARRATOR:

Mitch McConnell’s determination to transform the Supreme Court had been his life’s work.

MALE NEWSREADER:

—the dismay of several senators, U.S. Supreme Court nominee Clarence Thomas managed to—

FEMALE NEWSREADER:

—potentially ensuring a conservative majority for decades—

NARRATOR:

Through bruising confirmation battles—

MALE NEWSREADER:

—urged Democrats to keep an open mind about Kavanaugh—

NARRATOR:

A struggle over ideology and power—

FEMALE NEWSREADER:

The White House has been packaging Clarence Thomas like a political candidate—

MALE NEWSREADER:

—expected to be one of the most contentious confirmation hearings in memory—

NARRATOR:

Ignited by a devastating defeat—

FEMALE NEWSREADER:

—rejecting the nomination of Judge Bork—

MALE NEWSREADER:

Judge Bork, the long public ordeal—

NARRATOR:

And a promise to retaliate.

The Rise of Robert Bork

1987

MALE REPORTER:

The administration is marshaling all its resources for what may be the last great ideological battle of the Reagan presidency—

MALE NEWSREADER:

—what could be one the great Supreme Court nomination fights of the century—

NARRATOR:

It started at the Reagan White House.

MALE NEWSREADER:

Conservative Judge Robert Bork—

ROBERT BORK JR., Son of Judge Bork:

Some friends of mine from the White House counsel’s office called me and said, “It’s happening now.”

So I jumped in a cab and came running over and managed to get through security and into the White House.

It’s very exciting; it was wonderful. It was—I was very proud of him. It was kind of moving to see that.

PRESIDENT RONALD REAGAN:

It is with great pleasure and deep respect for his extraordinary abilities that I today announce my intention to nominate United States Court of Appeals Judge Robert H. Bork to be an associate justice of the Supreme Court.

THEODORE OLSON, Assistant Attorney General, President Reagan:

I thought, well, this man is an ideal person to be on the Supreme Court.

PRESIDENT RONALD REAGAN:

Judge Bork, widely regarded as the most prominent and intellectually powerful advocate of judicial restraint—

NINA TOTENBERG:

Bork was sort of the hallmark of ultra-conservative legal thought.

This was going to dramatically change the court. It was gonna change it in a far more conservative direction.

NARRATOR:

Reagan had already successfully appointed conservatives to a court he considered too liberal:

Sandra Day O’Connor; William Rehnquist, elevated to chief justice; Antonin Scalia; and now, with the retirement of Lewis Powell, Reagan could secure conservative control of the court.

NAN ARON, President, Alliance for Justice:

So this was an opportunity to really change the direction, not just for the next four years, but Republicans were hoping for the next 40 years.

NARRATOR:

Reagan’s attorney general made a phone call to Capitol Hill. He wanted to alert one powerful Democratic senator.

JEFF BLATTNER, Judiciary Committee staff, Sen. Kennedy:

Sen. Kennedy got a note that Attorney General Meese was calling for him. And he stepped out of the hearing into a phone booth and took the call. And Meese told him that it was going to be Bork.

NARRATOR:

Kennedy headed for the Senate chamber. To the liberal senator from Massachusetts, Bork was a dire threat.

ETHAN BRONNER, Author, “Battle for Justice”:

Everything that Bork had written and stood for meant that the civil rights and affirmative action push of the civil rights movement was in danger.

SENATE CHAIRMAN:

—and the senator from Massachusetts is recognized for five minutes—

NARRATOR:

It had only been an hour since Reagan’s announcement. Kennedy let the president and Bork know they were in for a fight.

SEN. TED KENNEDY, D-Mass.:

Mr. President, I oppose the nomination of Robert Bork to the Supreme Court, and I urge the Senate to reject it.

ALAN SIMPSON:

And our staff said, “Hey, go hear what Kennedy is saying.” So I went over.

TED KENNEDY:

Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids—

LINDA GREENHOUSE, The New York Times:

Whoa, this sounds a little over the top.

I knew Robert Bork; he’d been a professor of mine and I liked the guy, but certainly my journalistic instinct was, “OK, the fight’s on, the fat’s in the fire. This is really gonna be something.”

TED KENNEDY:

No justice would be better than this injustice. I yield back the balance of my time.

ALAN SIMPSON:

When he finished, there was just silence. I said, “What is all this s—? What—what are you doing?”

He said, “Just know that we’ll have to destroy him.”

ROBERT BORK JR.:

And we were watching this on TV as we were drinking champagne in the counsel’s office. And I said, “Are you guys ready for this?” And they said, “Oh, yeah, don’t worry about it.” Well, they weren’t ready.

Nobody was ready.

I don’t think they had any clue what was coming.

NARRATOR:

What was coming was a full-on political assault led by liberal Democrats, with protests, phone banks and attack ads.

FRANK LUNTZ, Republican pollster:

So you’re using every technique and every tool at your disposal.

And we’d never seen that before.

Political ad

GREGORY PECK:

This is Gregory Peck. Please, urge your senators to vote against the Bork nomination, because if Robert Bork wins a seat on the Supreme Court, it will be for life—his life and yours.

FRANK LUNTZ:

It was the first moment that you saw all-out war over a Supreme Court nominee.

It’s the first example of the politics of destruction of the modern era.

Bork Under Fire

MALE NEWSCASTER:

The name and future of Robert Bork tops the agenda in Washington this morning—

FEMALE NEWSCASTER:

—and nowhere is the debate hotter than at the confirmation hearings for Supreme Court nominee Robert Bork—

MALE ANNOUNCER:

This is an NBC News Special Report—

NARRATOR:

The Judiciary Committee hearings, led by the Democrats, were broadcast on national television.

TOM BROKAW:

It is a momentous day in Washington, D.C.—

MALE NEWSCASTER:

Judge Robert Bork began his battle for confirmation to the Supreme Court today—

ROBERT BORK JR.:

It was kind of tense. It was tense. It was TV lights—very hot TV lights. And there’s a certain sense, when you’re the family member, that there’s absolutely nothing you can do.

NARRATOR:

It was a cast designed for classic television drama. The attackers: Biden, Heflin, Metzenbaum, Leahy and Kennedy.

MALE REPORTER:

Judge Bork looks at Sen. Kennedy, and Sen. Kennedy now recognizes him.

SEN. TOM DASCHLE, D-S.D., 1987-2005:

I was glued to the television like everybody else. I was as smitten by all the television theatrical drama that everybody else was.

NARRATOR:

And there were the defenders: conservative Republicans Simpson and Grassley.

LINDA GREENHOUSE:

So the question was, “OK, how is this guy going to present himself? What’s gonna be the drill?”

TED KENNEDY:

Many controversial statements he has made as a professor and a judge I’ve compiled—

NARRATOR:

For five days they clashed.

SEN. HOWELL HEFLIN, D-Ala.:

Can you derive a right to an abortion from the Constitution?

NARRATOR:

They challenged Bork’s views on controversial issues.

SEN. HOWARD METZENBAUM, D-Ohio:

Yesterday you said women and blacks who know your record do fear you—

NINA TOTENBERG:

It was epic. I mean, they were discussing very serious things.

SEN. PATRICK LEAHY, D-Vt.:

Do we have a constitutional right to speak recklessly—

NINA TOTENBERG:

Busing and—

HOWELL HEFLIN:

—were made in busing—

NINA TOTENBERG:

—law and order, privacy—

SEN. JOE BIDEN, D-Del.:

Would we allow the police to search the sacred precincts of—

NINA TOTENBERG:

—abortion rights—

ROBERT BORK:

—the human life bill, which would have changed Roe against Wade—

NINA TOTENBERG:

—rights to determine all kinds of personal autonomy.

JOE BIDEN:

You do not believe that there is a general right of privacy that is in the Constitution?

ROBERT BORK:

Not one derived in that fashion—

NARRATOR:

Bork’s advisers told him to be succinct, not lecture the senators.

ROBERT BORK:

I’ll be happy to answer the committee’s questions.

NARRATOR:

He did not follow their instructions.

ROBERT BORK:

Oh, no. Oh, no, Senator.

SEN. ARLEN SPECTER, R-Pa.:

Well, let me, let me pick that strain up—

ROBERT BORK:

All right. But I’d like to get on the record right now that I don’t feel very free to disregard what Congress decided, that the mere fact that a law is outrageous is not enough to make it unconstitutional—

ROBERT BORK JR.:

I didn’t think it was going well.

I just thought it was torture.

You want to tap your dad on the shoulder and say, “I would say it this way.” Can’t do that.

ALAN SIMPSON:

They have been hammering you with that thing for five days.

NARRATOR:

Near the end, in an effort to save him, Bork supporter Wyoming senator Alan Simpson asked him one last question.

ALAN SIMPSON:

Why do you want to be an associate justice of the United States Supreme Court?

NARRATOR:

Many believe Bork’s answer was the death knell of his nomination.

ROBERT BORK:

And I think it would be an intellectual feast—

FEMALE REPORTER:

Some more bad news for Supreme Court nominee Judge Robert Bork—

MALE NEWSCASTER:

—by telling the senators the first attraction of the Supreme Court is the intellectual pleasure of it—

ALAN SIMPSON:

That seemed to be a big thing, “Oh, intellectual feast.” Oh, what the hell, you know, but that’s Washington.

MARK GITENSTEIN, Former Chief Counsel, Judiciary Committee:

And instead of saying, “I want to do justice and show mercy and protect the rights of individuals,” he says, “It’ll be an intellectual feast.” And most people said, “Who’s the dinner?”

SENATE CHAIRMAN:

Regular order will be followed. The clerk will continue calling the roll.

SENATE CLERK:

Mr. Bumpers, “No.”

Mr. Burdick. Mr. Burdick, “No”—

NARRATOR:

Bork’s candor had become a liability—

SENATE CLERK:

Mr. Chafee. Mr. Chafee, “No.”

NARRATOR:

For Democrats and even some liberal Republicans.

It was a resounding defeat for Bork and the conservative Republicans: 42-58.

SENATE CLERK:

Mrs. Kassebaum.

Mr. Cranston, “No.”

Mr. Kennedy. Mr. Kennedy, “No.”

ALAN SIMPSON:

The job was to cut this guy down.

“Get borked.” It’s now in the dictionaries of the United States and the world. It’s called “getting borked.”

SENATE CLERK:

Senator from Kentucky—

NARRATOR:

It was a searing experience for first-term senator Mitch McConnell.

Enraged, he took to the Senate floor.

SEN. MITCH McCONNELL, R-Ky.:

And so to Robert Bork, you happen to be the one who set the new Senate standard that will be applied in my judgment by a majority of the Senate prospectively.

Unfortunately, it got set over your dead body, so to speak, politically.

NARRATOR:

McConnell threatened that he and his Republican colleagues would use the same tactics when it mattered.

MITCH McCONNELL:

We’re gonna do it when we want to. And when we want to is gonna be when the president, whoever he may be, sends up somebody we don’t like.

JOSH HOLMES:

He’ll be darned if he’s going to allow them to just get away with taking somebody out without paying a price for it later on down the road.

MITCH McCONNELL:

And if we don’t like the philosophical leaning of the nominee—

NARRATOR:

It was a promise of revenge, a warning of what could happen if Republicans took control.

MITCH McCONNELL:

—on philosophical basis. The danger of that approach, of course, is it is a formula for—

The Federalist Society Joins the Fight

NARRATOR:

The next year, the sustained applause is from members of a new conservative legal group, the Federalist Society. It is for their hero, Robert Bork.

MICHAEL AVERY, Co-Author, “The Federalist Society”:

When Bork got taken down, you know, their attitude, I think, became “Never again.”

And this was something that they promised never to forget, never to forgive.

Absolutely energizing.

ROBERT BORK:

I have known less friendly gatherings—

LINDA GREENHOUSE:

The forces for Bork who suffered that very painful defeat didn’t give up, didn’t go home to sulk. They went underground and built an infrastructure to create a new reality for our judicial politics.

ROBERT BORK:

The battle is not over. I intend to be in it, and I know you do, too. Thank you.

NARRATOR:

The Federalist Society was started as a student group in 1981, with Bork at Yale and Antonin Scalia at the University of Chicago as the faculty advisers. Ted Olson spoke at their first convention.

THEODORE OLSON:

These were students that had been unhappy with the fact that they felt that their law school education was tilted so strongly to the left that they were not hearing opposing views.

NARRATOR:

Abortion. Busing. Protections for criminals. Gay rights.

The Federalist Society founders thought the courts had gone too far to the left.

JIM DeMINT, Former president, Heritage Foundation:

For years, for decades, the left, as we call them, progressives, a lot in the Democrat Party, were getting a lot of their agenda passed through the courts.

NARRATOR:

What began as a student group quickly grew: first as a job network, then a pool of prospective judges, supported by powerful conservative donors.

JANE MAYER, Author, “Dark Money”:

The Olin Foundation in particular, the Bradley Foundation.

There’s this handful, this cluster of far-right foundations with tons of old money in them. And they start to nurture the Federalist Society.

PRESIDENT RONALD REAGAN:

—many members of the Federalist Society—

NARRATOR:

During Reagan’s presidency, more than half the political appointees of the Justice Department had ties to the Federalist Society, as did all 12 assistant attorney generals.

MICHAEL AVERY:

I have an acronym that I use when I think about the Federalist Society. What’s the main idea, M-A-I-N, right? Money, access, ideas and network. And they were very successful on all those fronts.

NARRATOR:

Within 10 years they had built 120 chapters; 3,000 members with a budget of $700,000.

A Vacancy on the Court

1991

MALE NEWSREADER:

Thurgood Marshall, a man who played a pivotal role in the redefinition of justice in America, is leaving the U.S. Supreme Court, and with his resignation—

NARRATOR:

When the nation’s first African American justice, Thurgood Marshall, retired, it was a pivotal moment for Sen. Mitch McConnell and the Federalist Society: an opportunity to replace a liberal justice with a conservative.

FEMALE NEWSREADER:

Washington rumor mill has gone into overdrive this morning trying to figure out who the president—

NARRATOR:

Members of the Federalist Society had gone to work, searching for a nominee, scouring lists of conservative lawyers, judges.

One name stood out: Clarence Thomas, an African American appeals court judge.

PRESIDENT GEORGE H.W. BUSH:

—that I will nominate Judge Clarence Thomas to serve as associate justice of the United States Supreme Court.

NARRATOR:

The White House was determined that Clarence Thomas was not going to be “borked.”

THEODORE OLSON:

The individuals in the George H.W. Bush administration knew what was coming.

They remembered vividly what had happened with Robert Bork.

MALE REPORTER:

Clarence Thomas could not have been prepared for the mob of still photographers, TV cameras, reporters—

NARRATOR:

The Republicans built a war room. They prepped Thomas.

MALE NEWSREADER:

Senate hearings began on the Supreme Court nomination of—

NARRATOR:

They warned him it could get ugly.

MALE NEWSREADER:

Clarence Thomas, a black conservative originally from Pin Point, Georgia—

NARRATOR:

Once again, the proceedings would be a television event, here in the room where the Bork hearings captivated Americans.

MALE REPORTER:

—see Judge Thomas now with the chairman of the Judiciary Committee—

NARRATOR:

The cast was familiar:

Biden, Kennedy, Simpson, Metzenbaum, Heflin.

MALE REPORTER:

—but we don’t know how he’s going to comport himself—

NARRATOR:

This time the Republicans had an advantage. It would be hard for the Democrats to forcefully take on an African American nominee.

NINA TOTENBERG:

Politically, they were in a very difficult position. It’s very difficult to attack an African American judge, and they wanted to befriend him, not attack him.

JOE BIDEN:

The hearing will come to order. Good morning, judge. Welcome to the blinding lights. It’s a pleasure to have you here.

NAN ARON:

Polls initially showed that most Americans wanted Clarence Thomas on the Supreme Court, which caused some of the senators, particularly the Democrats, to try to go easy initially.

JOE BIDEN:

Heck, you’re six, seven years younger than—I’m 48. How old are you, judge? Forty-two, -three?

CLARENCE THOMAS:

Well, I’ve aged over the last 10 weeks, but I’m 43.

JOE BIDEN:

Forty-three years old—

NARRATOR:

Thomas’ White House handlers, sitting behind him, waited for the Democrats’ questions.

TED OLSON:

He was advised—I know this—to be careful, to be very modest.

They’re going to ask you about every controversial issue that has ever come before the Supreme Court.

CLARENCE THOMAS:

In the area of civil rights—

NARRATOR:

Unlike Bork, Thomas wouldn’t be so candid.

CLARENCE THOMAS:

—I don’t remember or recall participating—

NINA TOTENBERG:

He was like a steady brick wall. He just wasn’t going to answer anything, and he didn’t.

CLARENCE THOMAS:

I think that to take a position would undermine my ability to be impartial—

LINDA GREENHOUSE:

Say as little as possible. Disavow any idea that you ever had. Present yourself as a blank slate, and that’s the only way to win.

CLARENCE THOMAS:

What I am trying to do, senator, is to respond to your question and at the same time not offer a particular view on this difficult issue of abortion that would undermine my—

LINDA GREENHOUSE:

It was going to work; he was squeaking through.

MALE NEWSREADER:

President Bush said he has no doubt Clarence Thomas will be confirmed—

FEMALE NEWSREADER:

Confirmation hearings continue this morning in Washington for Clarence Thomas—

NARRATOR:

It had been eight days of hearings; the committee would soon vote.

NINA TOTENBERG:

(Radio) If Clarence Thomas is confirmed to the Supreme Court, his nomination is certainly the most controversial since Robert Bork’s—

NARRATOR:

But National Public Radio reporter Nina Totenberg heard something unusual.

NINA TOTENBERG:

Biden says something about, “People have tried to smear you with personal allegations.”

JOE BIDEN:

I believe there are certain things that are not at issue at all, and that is his character or characterization of his character.

NARRATOR:

Totenberg was surprised; no issues of character had been raised during the hearings.

NINA TOTENBERG:

And so I just started kicking tires, and I managed to get stuff.

NARRATOR:

She discovered a secret: allegations of sexual harassment by Clarence Thomas.

NINA TOTENBERG:

And pretty soon I had Anita Hill’s name, and I called her up.

NARRATOR:

Anita Hill had worked with Thomas at the Equal Employment Opportunity Commission.

NPR: “Weekend Edition”

October 1991

NINA TOTENBERG:

(Radio) According to Hill’s affidavit, Thomas talked about pornographic materials depicting individuals with large penises or breasts involved in various sex acts—

ANITA HILL:

(Radio) Here is a person who is in charge of protecting rights of women. He is also, really, violating the laws that he’s there to enforce.

NINA TOTENBERG:

It was just a giant explosion.

I mean, I walked up to Capitol Hill. It was like a mushroom cloud.

MALE NEWSREADER:

Good evening. We begin tonight with the potential for political explosion on Capitol Hill.

FEMALE NEWSREADER:

Clarence Thomas ran into trouble today—

MALE NEWSREADER:

Questions are growing over charges of sexual harassment against Thomas—

NARRATOR:

As the story broke, Sen. Mitch McConnell rushed to the Senate floor.

MITCH McCONNELL:

As soon as the president announced his choice, the special interest groups lined up their firing squad and vowed to bork him and to kill him politically.

NARRATOR:

McConnell saw the allegations against Thomas as yet another liberal takedown.

FRANK LUNTZ:

McConnell understands implication and consequence better than any United States senator. When you vote on legislation in the House and Senate, you’re playing for the next election. When you put in a judge, you’re playing for the next generation.

MALE NEWSREADER:

The sexual harassment storm around Clarence Thomas is intensifying—

NARRATOR:

Now McConnell would watch as Anita Hill threatened to derail Thomas’ nomination.

FEMALE NEWSREADER:

The stage is set for what everyone anticipates will be a brutal hearing—

JOE BIDEN:

Professor, do you swear to tell the whole truth and nothing but the truth, so help you God?

ANITA HILL:

I do.

JOE BIDEN:

Thank you.

LINDA GREENHOUSE:

It was incredibly compelling television. You know, she was gorgeous, composed, obviously projecting sincerity.

ANITA HILL:

On other occasions he referred to the size of his own penis as being larger than normal and he also spoke on some occasions of the pleasures he had given to women with oral sex.

JANE MAYER:

You could not take your eyes off this thing.

You couldn’t believe that people were accusing each other of these things. And the Senate had probably never heard language like this before.

ANITA HILL:

One of the oddest episodes I remember—

NARRATOR:

The Republicans had watched Bork attacked for his ideology; now it was Thomas’ character that was under assault, and they would go all out to defend their nominee.

ARLEN SPECTER:

My purpose is to find out what happened.

NARRATOR:

Sen. Arlen Specter led the charge.

ARLEN SPECTER:

I find the references to the alleged sexual harassment not only unbelievable, but preposterous.

NARRATOR:

He cast doubt on her memory.

ARLEN SPECTER:

How reliable is your testimony on events that occurred eight, 10 years ago?

NARRATOR:

He suggested she was exaggerating.

ARLEN SPECTER:

You took it to mean that Judge Thomas wanted to have sex with you, but in fact he never did ask you to have sex, correct?

ANITA HILL:

No, he did not ask me to have sex.

ARLEN SPECTER:

So that was an inference that you drew?

ANITA HILL:

Yes, yes.

JANE MAYER:

She stood between Clarence Thomas and the Supreme Court. They had to destroy her in order to get him confirmed.

If what she was saying was true, he had lied under oath.

JOE BIDEN:

Without objection it will be placed in the record. Again, I thank your family, thank you. Adjourned until 9 o’clock.

MALE NEWSREADER:

All America had its television sets tuned to the U.S. Senate—

MALE NEWSREADER:

Nothing like what happened today has ever happened before—

MALE NEWSREADER:

Washington, D.C., a city disgusted by the gutter politics played out on Capitol Hill.

NARRATOR:

But it wasn’t over.

Inside the Senate offices, Clarence Thomas prepared to answer Anita Hill’s allegations.

Sen. Alan Simpson was in the room.

ALAN SIMPSON:

We sat with Thomas. And I told him my theory of political life: An attack unanswered is an attack believed. Not only that, but agreed to. And he was teary.

But I said, “You must have something to say.” He said, “I do.” He said, “I really do have something to say.”

CLARENCE THOMAS:

This is a circus. It’s a national disgrace. And as far as I’m concerned, it is a high-tech lynching for uppity blacks who in any way deign to think for themselves, to do for themselves, to have different ideas.

JEFF BLATTNER:

I remember sitting behind a senator and hearing that and just feeling like a bomb had gone off in the room.

And it sucked all the oxygen out of the room.

CLARENCE THOMAS:

And it is a message that unless you kowtow to an old order, this is what will happen to you. You will be lynched, destroyed, caricatured by a committee of the U.S. Senate rather than hung from a tree.

SENATE CLERK:

The question is on the confirmation of the nomination of Clarence Thomas of Georgia. The clerk will call the roll.

FRANK LUNTZ:

Up to Robert Bork, there was a sense of civility to this, that you could disagree without destroying.

Robert Bork changed that, and Clarence Thomas confirmed it. And with the Clarence Thomas nomination, everybody was watching.

SENATE CLERK:

On this vote, the yeas are 52 and the nays are 48. The nomination of Clarence Thomas of Georgia is hereby confirmed.

NARRATOR:

Clarence Thomas was 43 years old; he vowed to stay on the court for 43 more years.

McConnell’s Power Play

NARRATOR:

In the years after Thomas’ confirmation, McConnell watched as Democratic and Republican presidents tried to tip the balance of the court.

MALE NEWSREADER:

President Clinton today nominated Ruth Bader Ginsburg, a 60-year-old judge—

NARRATOR:

With Republicans in the minority, Bill Clinton placed Ruth Bader Ginsburg and Stephen Breyer on the bench.

MALE NEWSREADER:

The president sent Congress the name of his nominee to fill the seat—

NARRATOR:

George W. Bush, with a Republican Senate, put John Roberts and Samuel Alito on the court.

MALE NEWSREADER:

Barack Obama is projected to be the next president of the—

MALE NEWSREADER:

Undoubtedly—

NARRATOR:

With Democrats back in control, Barack Obama appointed Sonia Sotomayor and Elena Kagan.

MALE NEWSREADER:

Still, many Republicans are asking if she’s the right person for the job.

NARRATOR:

Through it all, McConnell had been climbing to power inside the Senate: majority whip; Republican leader; and finally, majority leader.

REP. JOHN YARMUTH, D-Ky.:

There’s nobody who’s more focused on political conquest than he is. There may not have been anybody who has spent his entire life calculating. He knows more than everybody else.

It was how much he could win and how much power he could achieve.

NARRATOR:

McConnell had real power, and still holding on to that grievance about what happened to Robert Bork, he waited for the right moment to use it.

MALE NEWSREADER:

This is CNN breaking news—

FEMALE NEWSREADER:

Breaking news just in to us here at CNN. United States Supreme Court Justice Antonin Scalia has died, according to—

ALEC MacGILLIS, Author, “The Cynic”:

Scalia is found dead in his bed one day, and what to do in this moment of crisis becomes probably the defining moment of Mitch McConnell’s career.

MALE NEWSREADER:

And breaking news: U.S. Supreme Court Justice Antonin—

NARRATOR:

McConnell immediately understood the political implications of Scalia’s death.

JACK GOLDSMITH, Assistant Attorney General, President G.W. Bush:

The stakes are enormous because if you replace Scalia with an Obama appointee, then you probably have five justices on the court that are going to move the court in a much more progressive direction.

MALE NEWSREADER:

With that vacancy, the question is will a Republican-controlled Senate—

NARRATOR:

President Barack Obama’s replacement would give Democrats a five-justice majority on the court.

PETER BAKER, The New York Times:

Mitch McConnell doesn’t even wait for the day to end after Antonin Scalia dies to put out a statement saying, in effect, “We’re not going to let President Obama replace him.”

MALE NEWSREADER:

Majority Leader Mitch McConnell just releasing a statement—

MALE VOICE:

—this vacancy should not be filled until we have a new president.

NINA TOTENBERG:

It doesn’t matter if you name anybody or not, I’m—we’re not considering anybody because it’s too close to the election.

INTERVIEWER:

How shocking was that to you?

NINA TOTENBERG:

It was amazing to me. I mean, they can say, “Oh, there’s precedent.” This was unprecedented.

FEMALE NEWSREADER:

Four-and-a-half weeks after Justice Scalia died, today President Obama—

MALE NEWSREADER:

Friendly crowd in the Rose Garden there as President Obama nominates Merrick Garland—

NARRATOR:

Undeterred by McConnell, President Obama would forge ahead.

PRESIDENT BARACK OBAMA:

Today, I am nominating Chief Judge Merrick Brian Garland to join the Supreme Court.

LINDA GREENHOUSE:

President Obama was trying to nominate somebody who was going to be confirmed.

I thought, you know, how could members of the Senate, with their bare faces hanging out, stop this very appealing nominee about whom really not a bad word could be said.

MERRICK GARLAND:

Thank you, Mr. President. This is the greatest honor of my life, other than Lynn agreeing to marry me 28 years ago.

THEODORE OLSON:

Here is a man of distinguished education, distinguished background. This is the kind of person that should be on the Supreme Court. And if it’s Obama who is president, I was thrilled that he was appointing someone like Merrick Garland.

FEMALE NEWSREADER:

Five Republican senators have agreed to talk with Garland—

MALE NEWSREADER:

—a handful of Republicans to break ranks, including some facing tough reelection bids.

NARRATOR:

McConnell had a mini-revolt on his hands.

REP. JEFF FLAKE, R-Ariz., Judiciary Committee, 2013-19:

I met with Merrick Garland. I liked him.

That’s a person who would have gotten 98 votes or 100 votes in the 1990s, just a few years before.

FEMALE NEWSREADER:

—blasting his party’s leadership for stonewalling the nomination process—

SUSAN COLLINS:

To not even allow the Judiciary Committee to hold a hearing on his nomination just did not sit right with me.

MALE NEWSREADER:

Mitch McConnell joins us now from Capitol Hill. Senator, thanks for being here.

NARRATOR:

He fought back, hitting the airwaves.

MITCH McCONNELL:

The right-of-center world does not want this vacancy filled by this president.

We’re not giving a lifetime appointment to this president on the way out the door to change the Supreme Court for the next 25 or 30 years.

NINA TOTENBERG:

Sen. Moran from Kansas said he thought maybe there should be a hearing. And McConnell just said to him, “You keep talking like that, and I’m running a primary opponent against you,” and Moran backed off.

McConnell was ruthless and brilliant.

NARRATOR:

McConnell kept the Republicans in line. There would be no hearings; no votes; no consideration of Judge Garland.

HEIDI HEITKAMP:

The one thing that I’ve learned about Mitch is if he says this is the way it is, that’s the way it is.

ALAN SIMPSON:

I don’t ever question McConnell. I mean, I worked with him. You don’t want to mess with McConnell.

MALE NEWSREADER:

Democrats are outraged by Senate Majority Leader Mitch McConnell—

NARRATOR:

Mitch McConnell had done what had never been done: He’d blocked any consideration of a Supreme Court nominee.

MALE NEWSREADER:

—said he didn’t want to waste Garland’s time, quote, with unnecessary political routines orchestrated by the White House—

The List

NARRATOR:

In the years since Bork, McConnell’s ally, the Federalist Society, had become one of the most powerful forces in Washington.

MICHAEL AVERY:

The scale and scope was fantastic. They get into more and more law schools until they have a chapter in every law school in the country.

They have a lawyers chapter in all the major cities. They’re vetting all the nominees for federal judgeships.

NARRATOR:

Their revenue had grown to more than $26 million; there were now over 60,000 members.

JANE MAYER:

The numbers are enormous. The money is enormous.

And every important conservative jurist is a member.

All the conservative members of the Supreme Court and the rest of the courts on down through America.

NARRATOR:

But in 2016, as McConnell blocked Merrick Garland, the Federalist Society and the Republicans had a problem.

DONALD TRUMP:

We are led by very, very stupid people—

NARRATOR:

They were worried about the Republican presidential nominee, Donald Trump.

AUDIENCE:

Drain the swamp! Drain the swamp!

SEN. LINDSEY GRAHAM, R-S.C., Judiciary Committee:

But Donald Trump came out of nowhere to win the primary. He beat me and everybody else. But he was not a Republican in the sense that most of us understand the word to be.

Bottom line, his judicial philosophy, what he saw to be a conservative judge, was unknown.

NARRATOR:

McConnell had a plan: He knew a lawyer, Don McGahn, who was in the Federalist Society and worked for the Trump campaign.

JOSH HOLMES:

He’s known Don for many years. And they had a mutual trust.

They understand where each other are on issues that they are extremely concerned about.

NARRATOR:

They told Trump that promising to appoint Federalist judges would help him win over conservatives.

JOSH HOLMES:

Leader McConnell asked the president at that point, and I think Don McGahn was part of those conversations, to begin putting out a list that he would make public.

NARRATOR:

Candidate Trump liked the idea of a list.

He attended a meeting with the heads of the Federalist Society and the conservative Heritage Foundation.

JIM DeMINT:

He was very open about what he wanted to do.

And he said he wanted a list. He said, “Can anyone get one?” And I just raised my hand. “Yes, sir.” And he said, “Can you have it by Thursday?” We got the president a list of judges, and that’s the Federalist Society’s business.

ED O’KEEFE:

He outsourced this, essentially, to these two organizations. He had no understanding of who these people were.

But when presented with it, and when made clear that “This will help you politically; this will shore up your base,” he said, “We got to do it.”

DONALD TRUMP:

A lot of people are, like, a little bit worried about which judges—I’m gonna submit a list of justices of the United States Supreme Court that I will appoint from the list.

STEVE BANNON, Former Trump chief strategist:

That list, that was a massive seller, which is, “Hey, you may hate Trump, you may not trust him, but it’s got to be this 10.”

And I don’t think he’d be president without that list.

DONALD TRUMP:

We can do a great job—

NARRATOR:

McConnell had helped Trump get elected, and he’d held open Scalia’s seat, paving the way for the nomination of Federalist Society favorite Neil Gorsuch.

FEMALE NEWSREADER:

—confirmed as Justice Gorsuch—

NARRATOR:

Then, a year later, another opportunity—

MALE NEWSREADER:

—monumental moment for the Supreme Court—

NARRATOR:

Veteran Justice Anthony Kennedy unexpectedly resigned.

JACK GOLDSMITH:

Kennedy really was the middle of the court.

So it’s a really serious moment; the most serious moment in the balance of the court, really, since even before Bork.

NARRATOR:

Mitch McConnell understood the stakes. Kennedy’s replacement could lock up conservative control of the court.

The Battle Over Kavanaugh

MALE NEWSREADER:

President Trump’s pick is in for next Supreme Court nominee.

FEMALE NEWSREADER:

Brett Kavanaugh to replace retiring Justice Anthony Kennedy—

NARRATOR:

McConnell, Trump and the Federalist Society again swung into action.

The president nominated Judge Brett Kavanaugh, who had joined the Federalist Society at Yale Law School.

NINA TOTENBERG:

Kavanaugh is the perfect McConnell nominee.

He’s very conservative on economic issues, on executive power issues. He’s the perfect blending of establishment and sort of red state‒based politics.

NARRATOR:

And at the confirmation hearings, the Democrats immediately put up a fight.

KAMALA HARRIS:

Mr. Chairman, I’d like to be recognized to ask a question—

SEN. MAZIE HIRONO, D-Hawaii:

Mr. Chairman, it’s a pending motion—

SEN. AMY KLOBUCHAR, D-Minn.:

—if we don’t even know what the rules are, how can we—

CHUCK GRASSLEY:

I would like to respond to—

KAMALA HARRIS:

Mr. Chairman—

SEN. DICK DURBIN, D-Ill.:

Mr. Chairman, we waited for more than a year with a vacancy on the Supreme Court. The treatment was shabby of Merrick Garland and President Obama’s nominee.

CARL HULSE:

Democrats are really mad about Garland that happened in 2016. Very recent history.

LINDSEY GRAHAM:

People see through this.

CARL HULSE:

Republicans are still mad about Bork.

LINDSEY GRAHAM:

—my friends on the other side, you can’t lose the election and pick judges. If you want to pick judges, you better win.

CARL HULSE:

This stuff is now intensely polarized and superpartisan.

NARRATOR:

And as the Republican-led hearings got underway, Brett Kavanaugh would follow the Clarence Thomas playbook.

BRETT KAVANAUGH:

I can’t give you an answer on that hypothetical question.

Senator, that sounds like a hypothetical. I—

NARRATOR:

He wouldn’t engage.

BRETT KAVANAUGH:

That’s the hypothetical that you’re asking me—

Well, Senator, I think that hypothetical that you’re asking is—

—asking me a hypothetical that, uh—about any statutes that you’re asking me—

NARRATOR:

From his office McConnell watched the hearings.

It all seemed to be going smoothly.

JOSH HOLMES:

What you fear is the unknown. You don’t know what you don’t know.

And if there is something out there, some bombshell to drop, or some way to captivating media attention, then you could have problems.

FEMALE NEWSREADER:

Dropping a bombshell exactly one week before the committee is set to vote—

PETER BAKER:

And then you begin to see the newspapers’ vague references to anonymous allegations that had been lodged against Brett Kavanaugh about his conduct.

FEMALE NEWSREADER:

—about a woman in high school.

MALE NEWSREADER:

An allegation from his past—

NARRATOR:

The allegation: sexual assault.

JANE MAYER:

Word of her leaks out without her name at first, and then when there’s—the news breaks, just like with Anita Hill, her name is leaked.

FEMALE NEWSREADER:

Her name is Christine Blasey Ford—

FEMALE NEWSREADER:

The woman’s name is Christine Blasey Ford—

MALE NEWSREADER:

Christine Blasey Ford, research psychologist and professor at Palo Alto University, came forward—

NARRATOR:

McConnell wouldn’t back down from the coming fight.

JANE MAYER:

I think he was furious. You know, this was the torpedo that he dreaded.

FEMALE NEWSREADER:

Christine Blasey Ford described Kavanaugh as stumbling drunk—

NARRATOR:

He was worried about losing the Senate in the upcoming midterms; he had to get Kavanaugh confirmed, fast.

NINA TOTENBERG:

You know, those words of McConnell, “You will rue the day,” back in the Bork fight? Those equally applied to him if he lost the Kavanaugh fight, because the Democrats, if they controlled the Senate after this election—he would rue the day of what he’d done in Garland.

MALE SPEAKER:

The majority leader is recognized.

NARRATOR:

McConnell launched a counterattack.

MITCH McCONNELL:

Senate Democrats and their allies are trying to destroy a man’s personal and professional life on the basis of decades-old allegations that are unsubstantiated—

NARRATOR:

Bork. Thomas. Now Kavanaugh. The fight for the court had become personal. McConnell blamed the Democrats.

MITCH McCONNELL:

Democrats wouldn’t let a few inconvenient things get between them and a good smear. It’s despicable.

PETER BAKER:

He’s never faced a fight like this. He never faced one where he could go down like this. And it was right there on the razor’s edge.

MALE NEWSREADER:

Just moments away now from the historic testimonies of Christine Blasey Ford before the Senate Judiciary Committee—

FEMALE NEWSREADER:

Dr. Ford has arrived here on Capitol Hill to testify in public for the first time—

FEMALE NEWSREADER:

It will certainly be an historic day on Capitol Hill—

ED O’KEEFE:

Remember, nobody had seen her, and nobody had heard from her. Not even the senators. So it was a total surprise.

CHRISTINE BLASEY FORD:

I am here today not because I want to be. I am terrified. I am here because I believe it is my civic duty to tell you what happened to me while Brett Kavanaugh and I were in high school.

ED O’KEEFE:

When you realized how genuinely terrified she was to be there—it shocked a lot of the older, longer-serving senators that once again this issue was being brought into the public sphere.

CHRISTINE BLASEY FORD:

I believed he was going to rape me. I tried to yell for help. When I did, Brett put his hand over my mouth to stop me from yelling. This is what terrified me the most, and has had the most lasting impact on my life. It was hard for me to breathe, and I thought that Brett was accidentally going to kill me.

SEN. AMY KLOBUCHAR, D-Minn., Judiciary Committee:

It was, of course, a larger-than-life moment. Christine Blasey Ford had to go before the eyes of a nation and the world.

HEIDI HEITKAMP:

I thought she was enormously courageous, enormously persuasive.

SEN. SHELDON WHITEHOUSE, D-R.I., Judiciary Committee:

She was very polite and just looked dead honest.

SUSAN COLLINS:

It was a huge burden on her to come forward.

JEFF FLAKE:

It was impossible not to be riveted with her testimony. She was compelling.

NARRATOR:

Some of the senators that day had also been at the Clarence Thomas hearings.

Patrick Leahy was one.

PATRICK LEAHY:

When Dr. Ford testified, I asked her, “What do you remember of that incident?”

And I think everybody in that hearing remembers her answer.

CHRISTINE BLASEY FORD:

The laughter, the laugh—the uproarious laughter between the two, and they’re having fun at my expense. I was, you know, underneath one of them while the two laughed—two friends having a really good time with one another.

NARRATOR:

It looked bad for Brett Kavanaugh and the Republicans.

FEMALE NEWSREADER:

This is over. This was devastating.

MALE NEWSREADER:

I believe those who wanted to believe her, did.

MALE NEWSREADER:

The mood among Republicans on the Hill was one of gloom—

JEFF FLAKE:

We had a meeting right after her testimony. And I could tell that my colleagues were moved, and they were saying, you know, “He’d better be good. He’d better have an answer, because she sounds very credible.”

FEMALE NEWSREADER:

The worst-case scenario for Kavanaugh and his defenders was what just transpired—

NARRATOR:

At the White House, the president of the United States had also been watching.

JOSH HOLMES:

Both the president and Leader McConnell found her testimony to be incredibly compelling.

KELLYANNE CONWAY, Counselor to President Trump:

I was in the White House the entire day, including watching the testimony of both Ford and Kavanaugh. The president watched it live.

And the president and I have both said, each of us have said publicly, she gave—she rendered compelling testimony.

NARRATOR:

The president picked up the phone. On the other end: Mitch McConnell.

PETER BAKER:

Both of them are kind of testing each other a little bit. “Where are you at on this?” You know, “How strong are you?”

And McConnell basically says to the president, “You don’t worry about me. I’m strong as mule piss.” That’s his quote: “I’m strong as mule piss.” In other words, he’s not going to let up; he’s not going to give up; he’s not going to surrender.

Kavanaugh Fights Back

FEMALE NEWSREADER:

To say that everything that could have gone wrong for Brett Kavanaugh has is an understatement—

MALE NEWSREADER:

The impetus is on Judge Kavanaugh. They did not have the votes in the Senate—

FEMALE NEWSREADER:

Do not underestimate the importance of the next few hours for Brett Kavanaugh. He is about—

TED OLSON:

At some point, if you poke a stick and you torment that person and you attack that person, at some point, that individual’s going to fight back.

BRETT KAVANAUGH:

I categorically and unequivocally deny the allegation against me by Dr. Ford. I never had any sexual or physical encounter of any kind with Dr. Ford.

JANE MAYER, The New Yorker:

It was like watching Clarence Thomas all over again. This was another version of the high-tech lynching.

BRETT KAVANAUGH:

This confirmation process has become a national disgrace.

But you have replaced advice and consent with search and destroy.

NARRATOR:

Clarence Thomas had invoked race; now Brett Kavanaugh launched a partisan attack on the Democrats.

BRETT KAVANAUGH:

This whole two-week effort has been a calculated and orchestrated political hit fueled with apparent pent-up anger about President Trump, revenge on behalf of the Clintons and millions of dollars in money from outside left-wing opposition groups.

JANE MAYER:

It has become this completely politicized drama. He took the allegations away from Christine Blasey Ford and turned it into a huge fight between Democrats and Republicans. He’s trying to rally all the Republicans to his side.

NARRATOR:

Kavanaugh had become a combatant in the war between Republicans and Democrats.

PATRICK LEAHY:

Does this reflect what you are? Does this yearbook reflect your focus on academics—

NARRATOR:

They squared off over his high school yearbook—

PATRICK LEAHY:

That’s easy, “yes” or “no.” You don’t have to filibuster—

NARRATOR:

—and his drinking.

BRETT KAVANAUGH:

Freshman—no, no, no, no, no. You’ve got this up, I’m gonna, I’m gonna talk about my high school—

PATRICK LEAHY:

—I thought only the Senate could filibuster—

BRETT KAVANAUGH:

No, no, I’m gonna talk—

SEN. ORRIN HATCH, R-Utah:

Let him answer!

BRETT KAVANAUGH:

I’m gonna talk about my high school record if you’re going to sit here and mock me.

SHELDON WHITEHOUSE:

Did it relate to alcohol? You haven’t answered that.

BRETT KAVANAUGH:

I like beer. I like beer. I don’t know if you do—do you like beer, Senator, or not?

SEN. CHRIS COONS, D-Del.:

The quote that jumped out at me was, “Brett was a sloppy drunk and I know because I drank with him.”

CORY BOOKER:

That July 1st reference to “skis,” “went over for skis.” That’s “brewskis,” correct?

BRETT KAVANAUGH:

And after Tobin—

CORY BOOKER:

Sir, sir, I just need a “yes” or “no”—that’s “brewskis,” right?

BRETT KAVANAUGH:

Well, I need to explain in context—

CORY BOOKER:

You just said, sir, that you drank on weekdays. That’s all I was looking for—

AMY KLOBUCHAR:

You’re saying there’s never been a case where you drank so much that you didn’t remember what happened the night before, or part of what happened?

BRETT KAVANAUGH:

You’re asking about, yeah, blackout—I don’t know—have you?

AMY KLOBUCHAR:

Could you answer the question, Judge? I just—so you—that’s not happened? Is that your answer?

BRETT KAVANAUGH:

Yeah, and I’m curious if you have?

AMY KLOBUCHAR:

I have no drinking problem, Judge.

BRETT KAVANAUGH:

Nor do I!

AMY KLOBUCHAR:

OK, thank you.

CHUCK GRASSLEY:

Sen. Graham—

NARRATOR:

On the Republican side, Lindsey Graham led the fight.

LINDSEY GRAHAM:

This is the most unethical sham since I’ve been in politics. Boy, you all want power. God, I hope you never get it. I hope the American people can see through this sham.

God, I hate to say it, because these have been my friends, but let me tell you, when it comes to this—you’re looking for a fair process? You came to the wrong town at the wrong time, my friend. This is not a job interview; this is hell.

This is going to destroy the ability of good people to come forward because of this crap. Your high school yearbook!

PETER BAKER:

It serves to rally Republicans and make it an “us versus them” kind of issue. And if it’s an “us versus them” kind of issue, when you have the majority, that’s what you want.

SENATE PRESIDENT:

The clerk will call the roll.

SENATE CLERK:

Mr. Cruz; Mrs. Ernst; Mr. Flake; Mr. Gardner; Ms. Duckworth—

NARRATOR:

With McConnell’s Republicans almost entirely in line—

SENATE CLERK:

Mr. Toomey—

NARRATOR:

Brett Kavanaugh was confirmed.

SENATE CLERK:

Mr. Udall—

FRANK LUNTZ:

Our friends in the United States Senate, on both sides, created that environment.

SENATE CLERK:

Mr. Warner—

FRANK LUNTZ:

And now we have to live with it.

SENATE CLERK:

Ms. Warren—

FRANK LUNTZ:

And the problem is, we can’t.

SENATE CLERK:

Mr. Whitehouse—

FRANK LUNTZ:

And the biggest tragedy is that we are now hopelessly divided on the last thing that used to unite us, which is our judicial system. Now there’s nothing that pulls us together. Nothing.

NARRATOR:

Kavanaugh, Gorsuch, Thomas, Alito, Roberts; the Federalist Society and Mitch McConnell now dominate the Supreme Court.

ED O’KEEFE:

You talk about the Warren Court or the Burger Court or the Roberts Court. We’re living in the era of the McConnell Court now because he did what he did. And it very well could be the McConnell Court for several decades to come.

FEMALE NEWSREADER:

Clarence Thomas doesn’t want to serve on the high court anymore—

MALE NEWSREADER:

Clarence Thomas comfortable retiring now, and there’s a couple other—

MALE NEWSREADER:

Surgeons today removed two malignant nodules from Supreme Court Justice Ruth Bader Ginsburg’s left lung—

FEMALE NEWSREADER:

The 85-year-old is said to have fractured three ribs—

MALE NEWSREADER:

RBG’s health has become the subject of much attention in recent years—

SUPREME REVENGE: Battle for the Court (2020)

DIRECTED BY Michael Kirk

WRITTEN BY Michael Kirk & Mike Wiser

PRODUCED BY Michael Kirk Mike Wiser Philip Bennett

PRODUCED & REPORTED BY Jim Gilmore Gabrielle Schonder

EDITORS Steve Audette, ACE Elliott Choi

PRODUCTION EXECUTIVE Colette Neirouz Hanna

POST PRODUCTION SUPERVISOR Elliott Choi

DIRECTOR OF PHOTOGRAPHY Ben McCoy

NARRATOR Will Lyman

ASSOCIATE PRODUCER Olivia DelVecchio

GFX EDITOR Elliott Choi

RESEARCHER Brooke Nelson

PRODUCTION ASSISTANT Alana Schwartz

ORIGINAL MUSIC John E. Low

SOUND Jason Pawlak

ASSISTANT CAMERA Christopher Horne David Randag Bec Asmar

ONLINE EDITOR/COLORIST Jim Ferguson

SOUND MIX Jim Sullivan

VOICEOVER Mike McNally

LEGAL Ken Fishkin

ACCOUNTANT Joseph Shulman

SPECIAL THANKS Christopher Randall

ARCHIVAL MATERIALS ABC News VideoSource Alamy Alex Edelman/SIPA/Newscom Andrea Mohin/The New York Times/Redux Andrew Harnik/UPI/Newscom Associated Press Axiom Images Bill Clark/CQ Roll Call/Newscom Carlos Barria/Reuters/Newscom Chris Kleponis/POOL/EPA-EFE/Shutterstock Chris Wattie/Reuters/Newscom CNN Damon Winter/The New York Times/Redux David Scull/The New York Times/Redux Doug Mills/The New York Times/Redux Douglas Graham/Roll Call Photos/Newscom Erin Schaff/The New York Times/Redux Evan Vucci/AP/Shutterstock Gabriella Demczuk/Pool/Zuma Press/Newscom Getty Images J Scott Applewhite/AP/Shutterstock Jim Bourg/Reuters/Newscom Jim Graham/Redux Jonathan Ernst/The New York Times/Redux Jose R. Lopez/The New York Times/Redux Kinolibrary Larry Downing/Reuters/Newscom Leah Millis/Reuters/Newscom Library of Congress Mark Peterson/Redux Mark Reinstein/Zuma Press/Newscom NBCUniversal Archives NPR Oliver Contreras/The New York Times/Redux Oyez Patrick Semansky/AP/Shutterstock Patrick Semansky/Pool Xinhua/Redux Phil Pasquini/Shutterstock Pond5 Reuters Roger L. Wollenberg/UPI/Newscom Shutterstock T.J. Kirkpatrick/The New York Times/Redux Tom Brenner/The New York Times/Redux Tom Williams/CQ Roll Call/Newscom Toya Sarno Jordan/Reuters/Newscom Unity Archive Project Wazee Digital/CBS News WPA Film Library

ADDITIONAL MATERIALS Al Jazeera Bloomberg Business Insider Buzzfeed CBS News Chicago Tribune CSPAN Deutsche Welle El Paso Times Elton John FOX News Channel George H.W. Bush Presidential Library and Museum Jollies KRON Los Angeles Times Messenger Inquirer MSNBC News Nation Now NewsHour Official White House Photo by Andrea Hanks Official White House photo by Joyce N. Boghosian Official White House Photo by Shealah Craighead Oxford University Press People for the American Way Politico Ronald Reagan Presidential Library The Arizona Republic The Boston Globe The Danville News The New American The New York Times The New Yorker The Post-Crescent The Wall Street Journal The Washington Post Townhall USA Today Vanderbilt Television News Archives WCPO-TV

Original funding for this program was provided by public television stations, Corporation for Public Broadcasting, John D. and Catherine T. MacArthur Foundation, Ford Foundation, Abrams Foundation, Park Foundation, John and Helen Glessner Family Trust, FRONTLINE Journalism Fund with major support from Jon and Jo Ann Hagler and additional support from the Charina Endowment Fund.

FOR FRONTLINE

PRODUCTION MANAGER Megan McGough Christian

SENIOR PROMOTION PRODUCER Missy Frederick

SENIOR EDITOR Barry Clegg

PRODUCTION COORDINATOR Brenna Verre

ASSISTANT EDITOR Joey Mullin

PRODUCTION ASSISTANT Stevie Jones

FOR GBH OUTPOST

SENIOR DIRECTOR OF PRODUCTION TECHNOLOGY Tim Mangini

INTERNS Emma Davis Aviwe DuBois Barbara Losseau Claudia Rosado Juliana Torres Alexis Weaver

SERIES MUSIC Mason Daring Martin Brody

EXECUTIVE ASSISTANT Will Farrell

OUTREACH SPECIALIST Joshua Rae

IMPACT PRODUCER Erika Howard

DIGITAL WRITER & AUDIENCE DEVELOPMENT STRATEGIST Patrice Taddonio

AUDIENCE ENGAGEMENT EDITOR Anahita Pardiwalla

DATA ANALYST Ben Abrams

ASSISTANT EDITOR, DIGITAL Tessa Maguire

SERIES PUBLICITY MANAGER Anne Husted

DIGITAL PRODUCTION ASSISTANT Lucie Sullivan

PODCAST PRODUCER James Edwards

SERIES PODCAST PRODUCER Max Green

ARCHIVES & RIGHTS MANAGER John Campopiano

FOR GBH LEGAL Eric Brass Jay Fialkov Janice Flood

CONTRACTS CONSULTANT Junshi Lu

SENIOR CONTRACTS MANAGER Gianna DeGiulio

BUSINESS MANAGER Sue Tufts

BUSINESS DIRECTOR Mary Sullivan

SENIOR DEVELOPER Anthony DeLorenzo

LEAD DESIGNER FOR DIGITAL Dan Nolan

FRONTLINE/COLUMBIA JOURNALISM SCHOOL FELLOWSHIPS

ABRAMS JOURNALISM FELLOWS Dan Glaun Zoe Todd

TOW JOURNALISM FELLOW Lila Hassan

FRONTLINE/NEWMARK JOURNALISM SCHOOL AT CUNY FELLOWSHIP Shantal Riley

FRONTLINE/FIRELIGHT INVESTIGATIVE JOURNALISM FELLOWS Assia Boundaoui Andrés Caballero Jacqueline Olive PJ Raval

EDITORIAL CONSULTANTS Lauren Prestileo Callie T. Wiser

REPORTER Marcia Robiou

DIGITAL REPORTER Katie Worth

DIGITAL REPORTER & PRODUCER Priyanka Boghani

DIGITAL PRODUCER/EDITOR Miles Alvord

HOLLYHOCK FILMMAKER IN RESIDENCE Abby Ellis

SERIES PRODUCER AND EDITOR Michelle Mizner

INVESTIGATIVE PRODUCER Daffodil J. Altan

EDITORIAL COORDINATING PRODUCER Katherine Griwert

DIGITAL EDITOR Jennifer Wehunt

POST COORDINATING PRODUCER Robin Parmelee

SENIOR EDITOR AT LARGE Louis Wiley Jr

FOUNDER, EXECUTIVE PRODUCER AT LARGE David Fanning

SPECIAL COUNSEL Dale Cohen

SPECIAL PROJECTS EDITOR Philip Bennett

SENIOR EDITOR Lauren Ezell Kinlaw

DIRECTOR OF DIGITAL VIDEO Carla Borras

SENIOR PRODUCERS Dan Edge Frank Koughan

SENIOR EDITOR & DIRECTOR OF LOCAL PROJECTS Sarah Childress

MANAGING EDITOR Andrew Metz

MANAGING DIRECTOR Jim Bracciale

EXECUTIVE PRODUCER Raney Aronson-Rath

A FRONTLINE Production with Kirk Documentary Group

© 2019, 2020 WGBH Educational Foundation All Rights Reserved

FRONTLINE is a production of GBH and is solely responsible for its content.

SUPREME REVENGE (2019)

DIRECTED BY Michael Kirk

WRITTEN BY Michael Kirk & Mike Wiser

PRODUCED BY Michael Kirk Mike Wiser Philip Bennett

PRODUCED & REPORTED BY Jim Gilmore Gabrielle Schonder

EDITOR Steve Audette, ACE

PRODUCTION EXECUTIVE Colette Neirouz Hanna

POST PRODUCTION SUPERVISOR Elliott Choi

DIRECTOR OF PHOTOGRAPHY Ben McCoy

NARRATOR Will Lyman

ASSOCIATE PRODUCER Olivia DelVecchio

GFX EDITOR Elliott Choi

RESEARCHER Brooke Nelson

PRODUCTION ASSISTANT Alana Schwartz

ORIGINAL MUSIC John E. Low

SOUND Jason Pawlak

ONLINE EDITOR/COLORIST Jim Ferguson

SOUND MIX Jim Sullivan

VOICEOVER Mike McNally

LEGAL Ken Fishkin

ACCOUNTANT Joseph Shulman

ARCHIVAL MATERIALS ABC News VideoSource Alamy Alex Edelman/SIPA/Newscom Andrea Mohin/The New York Times/Redux Andrew Harnik/UPI/Newscom Associated Press Axiom Images Bill Clark/CQ Roll Call/Newscom Carlos Barria/Reuters/Newscom CC BY Image courtesy of University of Virginia Law Library CC BY Image courtesy of Virginia Law Weekly and University of Virginia Law Library Chris Wattie/Reuters/Newscom CNN Damon Winter/The New York Times/Redux David Scull/The New York Times/Redux Doug Mills/The New York Times/Redux Douglas Graham/Roll Call Photos/Newscom Erin Schaff/The New York Times/Redux Gabriella Demczuk/Pool/Zuma Press/Newscom George Bush Presidential Library and Museum Getty Images Jim Bourg/Reuters/Newscom Jonathan Ernst/The New York Times/Redux Jose R. Lopez/The New York Times/Redux Kevin Dietsch/UPI/Newscom Kinolibrary Larry Downing/Reuters/Newscom Leah Millis/Reuters/Newscom Library of Congress M. Scott Mahaskey/Politico Mark Peterson/Redux Mark Reinstein/Zuma Press/Newscom National Archives (60-NP-1542A-2) NBCUniversal Archives NPR Oyez Photograph courtesy of Yale Law School Reuters Roger L. Wollenberg/UPI/Newscom Ronald Reagan Presidential Library Shutterstock Tom Brenner/The New York Times/Redux Tom Williams/CQ Roll Call/Newscom Toya Sarno Jordan/Reuters/Newscom Unity Archive Project Vanderbilt Television News Archives Wazee Digital/CBS News WPA Film Library

Original funding for this program was provided by public television stations, Corporation for Public Broadcasting, John D. and Catherine T. MacArthur Foundation, Ford Foundation, Abrams Foundation, Park Foundation, John and Helen Glessner Family Trust, FRONTLINE Journalism Fund with major support from Jon and Jo Ann Hagler, additional support from Charina Endowment Fund.

FOR FRONTLINE

PRODUCTION MANAGER Megan McGough Christian

SENIOR PROMOTION PRODUCER Missy Frederick

ON-AIR PROMOTION EDITOR Barry Clegg

PRODUCTION COORDINATOR Brenna Verre

ASSISTANT EDITOR Joey Mullin

POST PRODUCTION ASSISTANT Tessa Maguire

FOR WGBH OUTPOST

DIRECTOR OF POST PRODUCTION Chris Fournelle

SENIOR DIRECTOR OF PRODUCTION TECHNOLOGY Tim Mangini

INTERN Joann Kohng

SERIES MUSIC Mason Daring Martin Brody

IMPACT PRODUCER Erika Howard

SENIOR DIRECTOR OF STRATEGY & AUDIENCE Pamela Johnston

DIGITAL WRITER & AUDIENCE DEVELOPMENT STRATEGIST Patrice Taddonio

AUDIENCE ENGAGEMENT EDITOR Katherine Griwert

PUBLICIST Diane Buxton

DATA ANALYST Ben Abrams

AUDIENCE ENGAGEMENT SPECIALIST Anne Husted

DIGITAL MARKETING ASSISTANT Sara Platnick

EDITORIAL ASSISTANT Julia Rod

SERIES COORDINATING PRODUCER Amy Gaines

ARCHIVES & RIGHTS MANAGER John Campopiano

LEGAL Eric Brass Jay Fialkov Janice Flood

SENIOR CONTRACTS MANAGER Gianna DeGiulio

BUSINESS MANAGER Sue Tufts

BUSINESS DIRECTOR Mary Sullivan

DEVELOPER Anthony DeLorenzo

SENIOR DIGITAL DESIGNER Dan Nolan

FRONTLINE/COLUMBIA JOURNALISM SCHOOL FELLOWSHIPS

ABRAMS JOURNALISM FELLOW Marcia Robiou

TOW JOURNALISM FELLOW Catherine Trautwein

FRONTLINE/NEWMARK JOURNALISM SCHOOL AT CUNY FELLOWSHIP

TOW JOURNALISM FELLOW Rahima Nasa

DIGITAL REPORTER Katie Worth

DIGITAL REPORTER & PRODUCER Priyanka Boghani

DIGITAL CONTENT CREATOR Miles Alvord

SERIES PRODUCER AND EDITOR Michelle Mizner

INVESTIGATIVE PRODUCER Daffodil Altan

DIGITAL EDITOR Abby Johnston

SENIOR EDITOR & DIRECTOR OF LOCAL PROJECTS Sarah Childress

SENIOR STORY EDITOR Lauren Ezell Kinlaw

POST COORDINATING PRODUCER Robin Parmelee

DIRECTOR OF DIGITAL VIDEO Carla Borras

SENIOR EDITOR AT LARGE Louis Wiley Jr.

SPECIAL COUNSEL Dale Cohen

SENIOR PRODUCERS Dan Edge Frank Koughan

SPECIAL PROJECTS EDITOR Philip Bennett

MANAGING EDITOR Andrew Metz

MANAGING DIRECTOR Jim Bracciale

EXECUTIVE PRODUCER AT LARGE David Fanning

EXECUTIVE PRODUCER Raney Aronson-Rath

A FRONTLINE Production with Kirk Documentary Group, Ltd.

©2019 WGBH Educational Foundation All Rights Reserved

FRONTLINE is a production of WGBH/Boston which is solely responsible for its content.