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

by Mollie Hemingway

  In early 2016, the Federalist Society had few connections with the Trump campaign, which was a much smaller organization than the other campaigns and was profoundly anti-establishment. McGahn was one of the few Washington insiders associated with it. The political class—the “establishment”—was downright oppositional. But then, the feeling was mutual.

  When Jonathan Bunch, the director of external relations for the Federalist Society, finally spoke to McGahn before the Iowa caucuses, the conversation got off to a rocky start. The soft-spoken Bunch wanted to know about Trump’s views on judges. McGahn responded dryly that Trump had it all under control—in fact, John Sununu was handling the issue for him. The man who had given America David Souter was working on two lists—one of pragmatists with no paper trails who would be easily confirmed, and the other of people whose conservative records made them too hot to handle.

  Bunch was speechless. Finally, he asked McGahn what they were going to do with the two lists. When, after a long pause, McGahn said the list of pragmatists would be thrown in the trash and the second list would be jammed through the Senate, Bunch realized that he had been joking about Sununu. McGahn told Bunch that he had been president of his Federalist Society chapter in law school. Everything would be fine. He was a judicial conservative.

  Back on the road and headed to the Eastern Shore of Maryland, McGahn was expecting a call from Trump to discuss Scalia’s death. After the loss in Iowa, Trump had soundly defeated all comers in the New Hampshire primary earlier in the week. South Carolina and Nevada were next, and Super Tuesday, when eleven states would select nearly half of the delegates needed to win the Republican nomination, was two weeks away. Many Republican voters’ chief concern about Trump was that he wasn’t actually conservative. He’d been a registered Democrat a few years earlier and had previously been outspoken in his support of abortion. “I am very pro-choice,” he declared on Meet the Press in 1999. His views on judicial philosophy were largely unknown, and he hadn’t given Republican voters reason to trust him.

  When Trump called, McGahn told him that he should move cautiously—extend his condolences to Maureen, Scalia’s beloved wife, and get a feel for the situation. As luck would have it, McConnell’s statement against confirming an Obama nominee dominated the news, giving the GOP presidential candidates some breathing room.

  Trump and McGahn discussed the high probability that the first question of that evening’s debate would be about Scalia. As it turned out, not only was that the first question, but Trump was the first candidate asked to respond to it. “Mr. Trump, I want to start with you,” began John Dickerson, the even-keeled CBS moderator. “You’ve said that the president shouldn’t nominate anyone in the rest of his term to replace Justice Scalia. If you were president and had a chance with eleven months left to go in your term, wouldn’t it be an abdication to conservatives in particular not to name a conservative justice with the rest of your term?” Trump responded that he would certainly nominate someone and was “absolutely sure” that President Obama would try as well, adding that he hoped Mitch McConnell and the Republican Senate would be able to delay until the election.

  And then he did something that turned out to be pivotal: He cited Diane Sykes and William Pryor as the kind of judge he would nominate to fill Scalia’s seat. Sykes, a former member of the Wisconsin Supreme Court, sits on the U.S. Court of Appeals for the Seventh Circuit. Pryor sits on the Eleventh Circuit. Both are known as bright lights in conservative jurisprudence, and attentive voters took notice.

  The decision to name names was a result of the phone call with McGahn. Trump suggested he should name specific persons who would be good replacements for Scalia. McGahn agreed, noting that Ted Cruz might have the same idea and they’d love to beat him to it. But whom should Trump name that evening? He was already familiar with Pryor, who had a large conservative fan base. McGahn suggested Sykes because she had recently authored one of the strongest free-speech opinions since the Citizens United decision.

  A third judge was also discussed: Brett Kavanaugh. While McGahn emphasized Kavanaugh’s stellar credentials and right instincts on separation of powers, he acknowledged he might be viewed as an inside-the-beltway candidate, the kind of judge Jeb Bush might pick. And a Kavanaugh opinion on Obamacare, which some read as the blueprint Chief Justice Roberts used to save the legislation when it came before the Supreme Court, had aroused the suspicions of legal conservatives. Not wanting to overload the candidate in the middle of his debate preparation, McGahn stopped the conversation there.

  Later in the debate, Cruz took a shot at Trump. “The next president is going to appoint one, two, three, four Supreme Court Justices. If Donald Trump is president, he will appoint liberals.” Trump responded by pointing out that Cruz had supported George W. Bush’s pick of John Roberts for chief justice. “They both pushed him, he twice approved Obamacare,” Trump said.70 Cruz had spent months needling Trump about his sister, handing out summaries of her decisions. For the debate, he expected Trump to suggest that Cruz himself would make a good justice. Trump’s naming two well-qualified judges took him by surprise.

  Republican nominees had long gotten away with merely signaling the type of justice they would nominate. In an interview for the Weekly Standard in 1999, Fred Barnes asked then-candidate George W. Bush about the kind of judge he would want. “Bush was quite specific. ‘I have great respect for Justice Scalia,’ Bush said,” citing his “strength of mind, the consistency of his convictions, and the judicial philosophy he defends.”71 But Bush was careful not to be any more specific than that. In the October 2004 debate with John Kerry he was asked, “If there were a vacancy in the Supreme Court and you had the opportunity to fill that position today, whom would you choose and why?” Bush’s response fit the conventional wisdom of the day: “I’m not telling.”72

  But some were beginning to recognize that disappointment with previous Supreme Court appointments was animating conservative primary voters. Following the September 2015 debate in which Cruz focused on the Court, the Washington Post ran an article headlined “How the Bush-Nominated Chief Justice Roberts Became Target in GOP Debates.”73 Scalia’s death, then, was not the only reason that Supreme Court appointments were a central issue in the debate that evening.

  The next morning Cruz and Trump were interviewed by the former Clinton spokesman George Stephanopoulos. Cruz said, “The one person he has suggested that would make a good justice is his sister, who is a court of appeals judge appointed by Bill Clinton. She is a hardcore pro-abortion liberal judge. And he said she would make a terrific justice.”74 Trump responded that he had “said it jokingly,” that she “happens to have a little bit different views than me,” and she “obviously would not be the right person.” Appointing his own sister, moreover, would involve a “conflict of interest.” He reiterated that the Bushes and Cruz had supported Roberts. It “was among the worst appointments I’ve ever seen. We have Obamacare because of Ted Cruz, Jeb Bush, and George Bush,” Trump declared.75

  Still, the issue of judicial appointments had been troublesome for Trump in Iowa, and the conventional wisdom was that Scalia’s death would be a blow to the campaign. “In Death, Scalia May Succeed in Blocking Trump,” read the headline to a Roll Call article by Melinda Henneberger, arguing that conservatives wouldn’t risk a vote for Trump with a Supreme Court seat hanging in the balance.76 And yet Trump’s response to Scalia’s death, that evening and in the weeks to come, helped propel him to a victory that nobody thought he could win.

  Voters responded so well to Trump’s reference to Sykes and Pryor in debates and speeches that he decided to make a longer list of judges who met with conservative approval. To get on the list, a judge (1) had to adhere to an originalist and textualist judicial philosophy,77 (2) had to have a clear record of following that judicial philosophy, and (3) had to have demonstrated the courage of his convictions—criteria that reflected a determination to avoid the failures of previous Republican presidents.

  M
cGahn organized a meet and greet with Trump at his law firm Jones Day in Washington on March 21 for members of congress who had endorsed him. Representative Tom Price of Georgia, a physician whom Trump would eventually tap to run the Department of Health and Human Services, wanted to come, but he wasn’t invited. The only invited official who had not yet endorsed Trump was Senator Tom Cotton of Arkansas. Other key players at the reception included former Speaker of the House Newt Gingrich; Jim DeMint, the president of the Heritage Foundation and a former senator; and Leonard Leo. McGahn laid the groundwork for the meeting by explaining to Trump the importance of the Federalist Society in the legal community and by asking Leo to come to the meeting with the names of some judges who would be worthy replacements for Scalia. Leo brought a card with a handful of names, and McGahn put it in his breast pocket.

  During the meeting, Trump asked everyone what he thought of his naming names during the debate and whether publishing a longer list was a good idea. The guests were surprised, but they approved, and Trump asked for their help. Afterward, he met privately with McGahn and Leo, and they discussed Souter and Roberts. Trump said he didn’t like Roberts’s Obamacare decision because the chief justice “made it up.” Then Trump asked Leo for suggestions for his list, and McGahn pulled Leo’s card out of his pocket. Trump asked if he could keep it, and he did. (After the election, when Leo met with the president-elect at Trump Tower, Trump pulled the card out for reference. He had written “Paul Clement?” on it with a Sharpie, a reflection of how many people had urged him to consider George W. Bush’s solicitor general.)

  Immediately after the meeting at Jones Day, Trump went to the construction site of the Trump Hotel on Pennsylvania Avenue for a press conference. The last question was whether he had a litmus test for Supreme Court nominees. He said he’d be looking for smart conservatives. Then he announced he’d be “making up a list” of seven to ten people and “distributing that list in the very near future.”78 There was no going back.

  When Jim DeMint returned to the Heritage Foundation, he immediately asked for help from John Malcolm, the head of Heritage’s Meese Center for Legal and Judicial Studies. Malcolm was concerned about making sure Heritage didn’t appear to be playing favorites with its advice, so he decided to publish the list for everyone, making it equally available to Bernie Sanders and Donald Trump. DeMint gave Malcolm relatively free rein, insisting only that the list be produced quickly. It was. Malcolm published a non-exclusive list of eight potential Supreme Court nominees just nine days later, on March 30.79

  Trump’s team was also working quickly, but it was a daunting task. Determining who had the proper judicial philosophy, a clear record, and the courage of his convictions required combing through a multitude of opinions.

  In addition to Leo, McGahn was assisted in finding candidates and reading their opinions mainly by his Jones Day associate James Burnham. People were eager to promote their favorite judge, so the recommendations poured in. One of the more valuable ones was Tom Hardiman, a Third Circuit judge who had gone to law school with McGahn’s law partner, Richard Milone. Leo also considered him a good candidate, and Trump’s sister, Hardiman’s colleague, praised his collegiality and work ethic. Her disagreement with many of his opinions may have been the perfect recommendation.

  The team talked to the judges for whom candidates had clerked and to those who had clerked with them. McGahn was particularly interested in what candidates had been like in their mid-twenties, the stage of life when he believed most people’s views solidified. Justice Kennedy was eager to help, offering the names of at least six former clerks who were in his “top five.” Kavanaugh was one of them. While Kennedy called his other clerks good or excellent, he tended to describe Kavanaugh as “brilliant.”

  To enable his team to arrive at a thorough and reliable evaluation of each candidate’s judicial philosophy, McGahn required that he or she already be a judge. A lawyer can always distance himself from an argument, even an aggressive one, made on behalf of a client. But to sign one’s name to a judicial opinion takes courage and conviction. Leo helped confirm that candidates had been committed to conservative legal principles over the long haul and were not just opportunists showing up now that Obama’s presidency was ending and a Supreme Court nomination was in the offing.

  Political considerations, though not the top concern, were necessarily present. The campaign’s strategy of realigning a winning coalition through the Rust Belt and its anti-establishment message militated against candidates from Washington, like Kavanaugh and Janice Rogers Brown of the D.C. Circuit. The latter, a favorite of McGahn’s, was at age sixty-seven probably past nomination age anyway.80

  Candidates needed to understand separation of powers and administrative law. Trump and McGahn shared a skepticism of the deference shown to bureaucracies, though they arrived at that skepticism for different reasons. For Trump, it was an instinctive frustration with the red tape that slows down or even kills construction projects. McGahn, on the other hand, had worked in the sausage factory himself. He learned at the Federal Election Commission about the inordinate control agencies have in shaping the law through the regulatory process.

  The team looked at how quick candidates were to defer to agencies. Some judges thought judicial restraint required deference to any governmental decision, including those of unelected bureaucrats. Others believed in deference to the constitutionally established branches of government, whose powers are checked and balanced, but approached the regulations spun out by unelected agencies with considerably more skepticism.

  The candidates had to show they understood the ins and outs of statutory interpretation. It was always a good sign to see citations to Justice Scalia’s treatise Reading Law in their footnotes, but showing they understood how to apply the canons of statutory construction in practice was even more crucial. Justice Tom Lee of the Utah Supreme Court stood out on the list on the strength of his crisp style and cutting-edge textualist research.

  Younger judges had an advantage simply because of the expectation that they would serve a long time, but McGahn’s team also liked them because they had come of age after the Bork hearings. Bork and Scalia had taught the law students of the 1980s and ’90s that they could be aggressive in fighting for their principles while still being engaging and witty. The concurrent rise of the Federalist Society was also of incalculable importance in forming and fortifying the generation of judges now coming into their own.

  As research for the list progressed, it became clear that there was a whole generation of people in their forties who hadn’t followed the traditional career path of conservative attorneys. It used to be that promising law students came to D.C. for prominent clerkships, worked at the Department of Justice, and continued to rise through the Washington ranks until they were eligible to be judges. But that default career path had changed.

  In its last two years, the Bush administration had been beset by foreign and domestic crises, and then came the eight years of the Obama administration. Republican prospects for 2016 and beyond looked dim. With no administration positions on the horizon, conservative lawyers had moved back home and developed careers there. Appellate practices took off at the state level. People who would have been at the Department of Justice in a Republican administration, such as Andy Oldham from Texas and Kyle Duncan from Louisiana (whom Trump would eventually appoint to appellate judgeships), instead went home and worked for state attorneys general. Many ended up on state supreme courts, such as David Stras of Minnesota and Allison Eid of Colorado (also now Trump-appointed circuit court judges). So even though the federal bench had been closed to young conservative talent for nearly a decade, McGahn’s team could choose from an abundance of rising stars with state judicial experience.

  Trump’s opportunities to appoint a Supreme Court justice would be limited, of course—three or four at the most, perhaps only one. But in compiling the Supreme Court list, McGahn’s team was identifying candidates for the circuit courts as well. The next
president would enter office with a historic number of judicial vacancies—more than awaited four of his five predecessors—and many more judges were ready to take senior status, opening more seats. It would be a tremendous opportunity to influence the federal judiciary starting on day one.

  The list was done and ready to go for weeks, but Trump didn’t release it. A previously released list of unvetted foreign policy advisors had caused the media to accuse him of being a Russian stooge, and now he wondered whether such lists were a good idea. Believing that the Supreme Court list would help Trump defeat Cruz in the primaries, McGahn had wanted it out before the Indiana primary on May 3. When Trump won that contest, securing the Republican nomination without the list, McGahn figured it would never be released.

  On May 18, however, Trump called McGahn and told him he wanted to put the list out. He asked McGahn for assurance that each name had been thoroughly vetted. When Trump pressed him about the quality of the candidates, McGahn offered to put the list out under his own name, an offer Trump declined. Within minutes of receiving the final approved list, the campaign posted it:

  Steven Colloton of Iowa

  Allison Eid of Colorado

  Raymond Gruender of Missouri

  Thomas Hardiman of Pennsylvania

  Raymond Kethledge of Michigan

  Joan Larsen of Michigan

  Thomas Lee of Utah

  William Pryor of Alabama

  David Stras of Minnesota

  Diane Sykes of Wisconsin

  Don Willett of Texas

  No one on the list knew that he or she would be on it. Don Willett of the Texas Supreme Court was at a book-signing for Governor Greg Abbott when news broke that he’d been included. Asked to comment on his inclusion, he declined. On the day Trump announced his candidacy, Willett had tweeted:

  Donald Trump haiku—

  Who would the Donald

  Name to #SCOTUS? The mind reels.