refusal even to say whether the foundational decision establishing judicial review, Marbury v Madison, was settled law, for which he was roundly derided.27 Yet, Lee noted, in the previous term the Supreme Court had considered a case involving Marbury. He also referred to the “Ginsburg standard,” by which the nominee Ruth Bader Ginsburg declined to offer any previews, forecasts, or hints about her views, refusing to answer a remarkable sixty different questions. Lee continued:
If Senators repeatedly ask nominees about outcomes, then the public will be more entitled—or at least more inclined—to think that judges are supposed to be outcome-minded, that that is supposed to be their whole approach to judging, that that’s supposed to be what judging is in fact about. But this, of course, undermines the very legitimacy of the courts themselves, the very legitimacy of the tribunal you have been nominated by the president to serve on. Over time, no free people would accept a judiciary that simply imposes its own policy preferences on the country, absent fidelity to legal principle. There’s a better way for the Senate to approach its work. This process, in my opinion, should be about your qualifications, about your character, and, perhaps most importantly, about your approach to judging, your own view about the role of the federal judiciary. It should not be about results in a select number of cases.
Back and forth the senators went until it was time for Kavanaugh to be introduced. Former Secretary of State Condoleezza Rice, Senator Rob Portman, and Lisa Blatt, a high-powered liberal feminist lawyer—all of them longtime friends and colleagues—took turns singing his praises.
In his opening statement, Kavanaugh reflected on his background, his judicial philosophy, and his optimism. “I live on the sunrise side of the mountain, not the sunset side of the mountain,” he said. “I see the day that is coming, not the day that is gone. I am optimistic about the future of America. I am optimistic about the future of our independent judiciary.” That image was taken from a painting in George W. Bush’s Oval Office, Rio Grande, a West Texas landscape by Tom Lea, which the president liked to refer to. The idea of the “sunrise side of the mountain” stuck with staffers, particularly in the heavy days following September 11. Kavanaugh’s genuine optimism encouraged his clerks and others involved in the confirmation battle. He had worked relentlessly, remembered to thank those assisting him for their good work, and brought pizzas to staffers working long nights and weekends.
Kavanaugh came into the first day of hearings determined to remain positive, but by the end of the day the hearings had turned hostile. Raj Shah counted sixty-three interruptions from Senate Democrats, mostly related to demands for more of Kavanaugh’s irrelevant paperwork and other trivial delaying tactics that had nothing to do with evaluating his substantive qualifications.28 More than seventy protesters were arrested.
Those protesters didn’t arrive spontaneously. Planned Parenthood Action Fund flew in “storytellers” from as far away as Alaska and North Dakota. Winnie Wong, a senior advisor to the Women’s March, explained their carefully coordinated messages. Members going into the hearing room were given “a script where we suggest certain messaging that may resonate more.” The storytellers’ travel and accommodations were paid for, as were their legal aid and bail if they were arrested, which was generally the goal. Later in the hearings, the organizers of the protesters—the Women’s March and the Center for Popular Democracy—were warning activists that being arrested three times might lead to a night in jail. The group raised sums of more than six figures to finance the protests. “This is well-organized and scripted,” said Wong, “This isn’t chaos.”29
Outside the hearing room, one of the stranger social media frenzies was sparked by televised images of Kavanaugh’s former clerk Zina Bash sitting behind him as he testified. Her arms were crossed, the thumb and forefinger of her right hand touching to form something like an “okay” gesture. An urban legend, nurtured on the internet, has it that the “okay” gesture signals “white power.” Eugene Gu, a prominent anti-Trump activist with 271,000 Twitter followers, tweeted, “Kavanaugh’s former law clerk Zina Bash is flashing a white power sign behind him during his Senate confirmation hearing. They literally want to bring white supremacy to the Supreme Court.” Some fourteen thousand people retweeted Gu’s absurd and baseless accusation.30
Bash’s husband, a U.S. attorney, took to Twitter himself to defend his wife’s honor and point out how ludicrous the charge was, adding that his wife