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

by Mollie Hemingway

  At the same time, Kavanaugh had a broad network of friends and allies—from federal judges to conservative media stars to his family dry cleaner—who could vouch for his ability and character and thought he should not just be on the list but at the top. His name had been openly discussed in major media as the most likely Republican nominee for the Court since at least 2012.13 His lengthy record as a conservative appellate judge was well known and widely respected.

  Kavanaugh had a particularly loyal network of former clerks. He had hired twenty-five women and twenty-three men as law clerks in his dozen years on the D.C. Circuit. An astounding thirty-nine of them went on to clerk at the Supreme Court, securing his coveted spot as the top “feeder judge” on the federal bench. The first time Kavanaugh had really thought about the Supreme Court was when, as a fifteen-year-old, he read The Brethren, Bob Woodward’s behind-the-scenes account of the Court in the 1970s. The stars of the book were the clerks, and he thought it seemed like a great job—even better than the job of a justice.

  Kavanaugh was regularly in touch with his former clerks, hosting them at holiday parties and baseball games. Every five years they would get together with their spouses for a reunion, where the judge would introduce those who were new since the previous reunion, describing in detail where he met each clerk and what he liked about him or her. He offered personal touches, as when he recounted a funny toast given at a clerk’s wedding or reminisced about trading belts with a clerk who was underdressed on his way to interview with the chief justice.

  As devoted to their mentor as he was to them, Kavanaugh’s former clerks took on the task of lobbying for his nomination, talking to anybody who would listen at the White House and in conservative legal circles. Some of them worked inside the White House counsel’s office itself. Whether from the inside or the outside, the lobbying helped. Not only was Kavanaugh now on the list, he was widely considered a front-runner.

  The president met with Kavanaugh on Monday, July 2, asking him about his background and White House experience. Trump was looking for someone who could sit on the court for thirty to forty years, was exceptionally well qualified, was an originalist, and was not weak. Kavanaugh emphasized that he’d been tested throughout his career and had stood by his principles in moments of difficulty. It was a friendly conversation, not a quiz, and it was over in less than a half-hour. The president felt that Kavanaugh had shown signs of courage and decisiveness in his interview, and that kept him in contention.

  Judges are not supposed to be political, but their selection and confirmation, committed by the Constitution to political actors, is unavoidably so. Court watchers knew Kavanaugh was the one to beat from the moment he was added to the list, and online bettors gave him the best odds for securing the nomination as soon as Kennedy retired.14 But there were other contenders, some of whom had serious bases of support. Other than Kethledge, Kavanaugh, and Barrett, Trump was considering Thomas Hardiman of the Third Circuit and Amul Thapar of the Sixth Circuit. He met with all of them that Monday except Hardiman, whom he’d met during the previous nomination process. He also interviewed other candidates by phone.15

  Demand Justice, a left-wing interest group recently founded by Brian Fallon, the campaign spokesman for Hillary Clinton, the Democratic presidential nominee in 2016, announced plans to spend $1 million in television ads against the eventual nominee, whoever he or she might be, and dropped online ads against three of the contenders within a day of Kennedy’s retirement.16 One of the targets was Amy Coney Barrett, a favorite of conservatives since her deft handling of hostile questions about her Catholic faith from Democratic senators and the media after her nomination to the appellate bench the previous year. The New York Times suggested a religious organization to which she belonged was a cult, while Senator Dianne Feinstein, the top Democrat of the Senate Judiciary Committee, criticized the role of faith in her life, sneering that “the dogma lives loudly within you.”17 That tortured phrase became a rallying cry for Christian youth groups and others who were impressed that Barrett held firm under fire for her faith.

  Demand Justice’s ads signaled that the left was serious. But on the right, nothing was being taken for granted. The Judicial Crisis Network was prepared to spend tens of millions of dollars, as it had already done in the effort to confirm Justice Gorsuch to Justice Scalia’s seat. JCN (of which one of the authors is chief counsel and policy director) had served as a hub of outside groups supporting conservative judicial nominees since 2005. And by the time Justice Kennedy retired, it was ready for its greatest test yet. The group would supervise an extensive research operation, organize rapid response, brief journalists and opinion leaders, and activate grassroots leaders across the country while running the most robust paid media campaign in the history of Supreme Court confirmation battles. JCN’s first ad, which began running the day the vacancy was announced, built on the success of the Gorsuch confirmation of the year before. “Like Justice Gorsuch, all of the men and women on President Trump’s judicial list are the best and brightest in their field.” It concluded, “We look forward to President Trump nominating another great justice.”18

  In the twelve days between Kennedy’s retirement and Trump’s announcement of his nominee, the major media were focused on the horse race—which candidate was gaining, which was falling behind. But the conservative media were hosting a vibrant debate over the merits of potential nominees, a debate fed by various interest groups concerned about how each candidate might treat their particular issue and by the advocates of each candidate.

  Since all of the judges on Trump’s list were highly qualified and had conservative track records, most criticism of particular candidates took place behind the scenes. Everyone was alert to the problem of political primaries, in which the eventual nominee emerges bloodied with another battle ahead of him. All the candidates on the list were at least acceptable, and no one wanted to weaken the eventual nominee’s prospects for confirmation, so the most intense debates were kept behind the scenes. Nevertheless, some individuals and organizations were speaking out, and a few were aiming their fire directly at Kavanaugh.

  Conservative media praised Kavanaugh for his approach to administrative law, the body of rules that govern the multitude of federal regulatory and administrative agencies. The average citizen hears little about this arcane and rarely glamorous field of law, but in recent decades, as Congress has delegated to the bureaucracy the real work of governing the United States, administrative law has become enormously consequential for Americans’ rights and freedoms.

  Many worried, however, that Kavanaugh had hidden in the tall grass by avoiding controversial social-policy issues. His recent handling of the question of whether a teenager caught entering the United States illegally had a constitutional right to an abortion had not inspired confidence among pro-lifers. His opponents circulated a summary paper criticizing him for seeking “a compromise that would allow [the girl] to obtain her abortion” and for refusing “to take a stand” with another judge who questioned whether such a person even had a constitutional right to abortion. He was also criticized for a dissent that some argued had presumed a compelling government interest in facilitating access to contraception. His decisions on religious liberty, it was said, were not sufficiently bold at a time of increasing encroachment by the government.19

  Conservatives worried about more than Kavanaugh’s commitments on social issues. They charged that a dissent from 2011, in which he discussed how a mandate to purchase insurance could pass constitutional muster, amounted to a “roadmap for saving Obamacare.”20

  The defining feature of his jurisprudence, critics said, was “avoidance.” Principles were less important to him than his “reputation.” And “nothing” suggested he would “find the courage to embrace conservative principles” on the Supreme Court. There was “no reason to risk it,” an opposition document warned. “There’s a difference between a home run and a grand slam,” opined one writer in National Review.21 These conservatives
were not fully opposed to Kavanaugh’s nomination, but having been burned many times before, they feared that he was another establishment Republican who would swing to the left once he was on the Court.

  Even people within the White House were concerned, but as they dug deeper into his record, they believed he viewed his role on the circuit court as writing for Justice Kennedy. Kavanaugh understood how Kennedy thought, and even when he disagreed with him, he admired him. He always carried a pocket Constitution signed by Kennedy. Kavanaugh tried to craft a solid, constitutionally correct result that Kennedy would adopt rather than being swayed by the liberal bloc on the court.

  Others close to the process were swayed by the weight of his judicial record. No conservative appeals court judge—including even then-Judge Gorsuch—had as many opinions on significant and controversial questions as Kavanaugh, from his defense of First Amendment protections for political speech, to his bold Second Amendment dissent that had garnered repeated citations from Thomas and Scalia, to his pathbreaking separation of powers cases, which had pointed out constitutional infirmities in the structure of several administrative agencies.

  Each time a piece expressing concerns was published, an army of former clerks and other surrogates rose in Kavanaugh’s defense, sometimes within minutes. Clerks generally serve a one-year term with a judge after law school, assisting in the research and drafting of judicial opinions. They work closely with their judge, almost as apprentices, and it’s not unusual for them to form lifelong bonds. Clerkships are like being adopted into a large extended family with one patriarch or matriarch at the head. Some of Kavanaugh’s former clerks took leave from their jobs or did double duty to participate in the effort to secure his nomination. Roman Martinez, a former clerk turned Supreme Court litigator, was abroad on a family vacation and worked remotely and across five time zones. The same day the vacancy was announced, Travis Lenkner, who had also clerked for Justice Kennedy, packed his bags and hopped on a plane from Chicago, texting the judge that he was on his way to help.

  Kavanaugh’s chambers in the E. Barrett Prettyman U.S. Courthouse on Constitution Avenue, near the Capitol, comprised a few offices for the judge and his staff and a small conference room. This became the cramped headquarters of the Kavanaugh “campaign.” Being in Washington was a huge advantage, but with spotty cell phone and internet service and no televisions, the offices themselves made a poor communications nerve center. The air-conditioning was shut off at six p.m., leaving the offices stiflingly hot in the D.C. summer evenings. And because the volunteers were not employees of the court, none of them had badged access to the courthouse. The judge’s capable executive assistant, Eva Roney, had to stay there as late as they did. Apart from the difficulty of getting in and out of the building, the neighborhood had few restaurants open in the evening, so even getting dinner was a big production.

  Beyond the team of former clerks working in chambers were dozens volunteering as they could from across the country. One collected news clips and tweets from prominent figures, arranging them into what needed to be seen immediately, hourly, and daily and then distributing them to the team, a contribution that was essential for responding to critiques from fellow conservatives.

  Some former clerks, hoping that their judge would be added to the White House list and confident that he would be a leading contender, had begun preparing for a Supreme Court vacancy at least a year earlier. That work, which accelerated as the 2017–2018 term drew to an end, included reading through Kavanaugh’s hundreds of opinions, sorting them by topic—gun rights, free speech, search and seizure, the administrative state, and so on—and preparing excerpts from significant cases, contextualizing them for their importance. These were invaluable aids for surrogates talking about Kavanaugh in the media.

  The Kavanaugh team emphasized his influence on the court, noting his skill at strategically framing an opinion to convince other judges on the same case to take a more conservative position than they might otherwise have done. It was important that his persuasive techniques be appreciated for their effectiveness rather than misunderstood as a sign of weak convictions. They also wanted to make sure people remembered Kavanaugh’s long record of public service prior to being a judge. He had taken on a politically risky role in the independent counsel Kenneth Starr’s “Whitewater” investigation of Bill and Hillary Clinton’s Arkansas land deals. And he had served with distinction in the frequently besieged Bush White House. Unlike some lawyers angling for judicial office, he had not built his career by avoiding conflict and keeping his powder dry. Brett Kavanaugh was not timid.

  The former clerks spoke privately with persons of influence and lobbied publicly as well. Sarah Pitlyk, a litigator on issues of life and religious liberty, responded to criticisms about Kavanaugh’s jurisprudence by writing, “On the vital issues of protecting religious liberty and enforcing restrictions on abortion, no court-of-appeals judge in the nation has a stronger, more consistent record than Judge Brett Kavanaugh. On these issues, as on so many others, he has fought for his principles and stood firm against pressure. He would do the same on the Supreme Court.”22

  Sometimes the criticism of Kavanaugh baffled them. The day after Kennedy’s retirement, the popular conservative pundit Ben Shapiro, himself a lawyer, had written that he “has the most red flags” of the top five contenders, suggesting that Kavanaugh—who was particularly well known for his critiques of bureaucratic overreach—supported “the notion that administrative agencies ought to be granted deference by the judicial branch.”23 The former clerks found people who could talk to Shapiro and pass along an effective response, and he corrected the error.24

  As hard as his former clerks and the White House were working, nobody was working harder than Kavanaugh himself, who was famous for his diligence.25 The round-the-clock news cycle meant late hours. Stories would break late into the evening, requiring a rapid response no matter the time. The judge was in his chambers past midnight most nights, country music playing on the radio, the influence, perhaps, of his Texan wife. Ashley tended to think that what was meant to happen would happen. He, by contrast, believed that if you prepared enough, you could be ready for anything. The decision of whom to nominate to the Supreme Court was not his to make, but he wouldn’t be able to live with himself if he were not chosen because he had failed to prepare. The longtime athlete believed in leaving everything on the field. So he reread his opinions and pored over his record, thinking about how to talk about them. He described and evaluated his judicial philosophy, winnowing down volumes of work into talking points he could use in meetings.

  The Constitution gives the president the power to appoint Supreme Court justices, subject to the advice and consent of the Senate. The advice of senators was solicited early. The list of potential nominees had been public prior to Kennedy’s retirement, of course, and the White House sought the views of five moderate senators—the Republicans Susan Collins of Maine and Lisa Murkowski of Alaska and the Democrats Joe Donnelly of Indiana, Heidi Heitkamp of North Dakota, and Joe Manchin of West Virginia—each of whom could have a decisive vote.

  Collins was on the floor of the Senate the day after Kennedy’s retirement when she got the email inviting her to the White House to discuss the nomination. She told Murkowski, who had also just received an invitation. They decided to combine their appointments, which were back to back. Collins told the president she hoped he would nominate a judge with intelligence, integrity, and experience and noted her concerns about adherence to precedent and the separation of powers. They did not discuss particular candidates as much as the desired judicial philosophy. Collins encouraged the president to not feel limited to his initial list, though she was pleased when she learned he had refreshed it. As the two Republican women were departing, Senator Manchin arrived to discuss his views with the president and McGahn.

  Senator Mitch McConnell, who saw judicial appointments as an important part of his legacy, was ecstatic at the opportunity to confirm another Supreme Court
appointment. An open supporter of Thapar, a fellow Kentuckian whom he had first brought to Trump’s attention, he expressed serious concern about the volume of paperwork a Kavanaugh nomination would produce. Besides the papers from his time on the Whitewater independent counsel’s staff and in the White House counsel’s office, there was his tenure as the White House staff secretary, when every piece of paper in the White House crossed his desk.

  The staff of the Senate Judiciary Committee shared McConnell’s concern and discussed it with reporters. An article on the Daily Caller, citing Senate aides, reported that the prospect of Kavanaugh’s nomination had “some influential conservatives cringing behind the scenes. . . . ‘The White House Counsel’s Office is reeling today on Kavanaugh,’ says one GOP judicial insider with direct knowledge of the selection process. ‘Kavanaugh is crashing and burning today. I cannot figure out how this happened in one day.’ ” Quoting an unnamed “senior administration official” who called Kavanaugh the “low-energy Jeb Bush pick” and an “influential Hill staffer” who called him “John Roberts incarnate,” the article emphasized Kavanaugh’s ties to the Bush administration and to McGahn.26 It also included a leak of confidential information about how many millions of records would have to be processed. Kavanaugh’s team had hoped to avoid such “process” stories and to keep the focus on qualifications. They quickly determined that the leaker was a key aide on the Senate Judiciary Committee who supported Kethledge.