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

by Mollie Hemingway

  *weeps—can’t finish tweet*81

  It wasn’t his only tweet critical of the candidate. Nevertheless, Trump eventually appointed Willett to the Fifth Circuit. The media highlighted the tweets again, to the consternation of the president, but the quality of his opinions was what mattered. The media’s reaction focused on tangential issues, such as Willett’s tweets or the absence of D.C. insiders such as Kavanaugh and Clement, but most treated the list as largely respectable, if conservative.82

  The Cruz campaign, still hoping to make a play at the Republican convention, was paralyzed. Chuck Cooper, a topflight litigator, head of Reagan’s Office of Legal Counsel, and an adviser to the campaign, said the list was brilliant. Campaign staff contemplated putting out their own list but couldn’t find anyone on Trump’s list that wouldn’t be on theirs. Other conservatives loved the list as well. But because Trump had not promised to take his nominee from the list—he called it a list of “potential” nominees—some said it didn’t mean anything. The “NeverTrump” movement within the Republican Party, which would make a last-ditch effort to deprive him of the nomination at the GOP convention in August, argued that he couldn’t be trusted to take his nominee from the list.

  Leo and McGahn, appreciating the amount of vetting still required before anyone on the list could be nominated to the Court, did not regard it as definitive and did not want to be confined to it. Besides, plenty of other people were under consideration, including Neil Gorsuch. He had written around 175 opinions on the Tenth Circuit, and it would take time to go through them all. They also knew that the conventional wisdom about the dangers of such a list was right about one thing: putting names out opened them to attack. They didn’t mind having a few top candidates like Gorsuch spared some of the barrage. For his part, Trump liked putting up the trial balloon.

  Steve Bannon, the bombastic head of Breitbart News, became chief executive of the campaign in August. In light of how well the first list of judges had been received and because the NeverTrump faction was capitalizing on the conditional terms in which the first list was presented, he wanted an updated list with additional names and a firm commitment to take the nominee from it. And locking in a solid choice for the Supreme Court now would be an insurance policy in case someone with different judicial priorities became White House counsel or attorney general in a future Trump administration.

  On September 23, 2016, three days before the first presidential debate with Hillary Clinton, Trump released an updated list with ten additional names, and he promised, “This list is definitive and I will choose only from it.”83 The new candidates were:

  Keith Blackwell of Georgia

  Charles Canady of Florida

  Neil Gorsuch of Colorado

  Mike Lee of Utah

  Edward Mansfield of Iowa

  Federico Moreno of Florida

  Margaret Ryan of Virginia

  Amul Thapar of Kentucky

  Timothy Tymkovich of Colorado

  Robert Young of Michigan

  Senator Mike Lee, whose brother Thomas was already on the list, was the only non-judge to be included. He was added at the request of Cruz, who was preparing to endorse Trump after refusing to do so outright at the 2016 Republican convention. The radio and television host Laura Ingraham, a former law clerk for Justice Thomas, brokered the arrangement. Once the list was released, Cruz gave his endorsement, citing the Supreme Court and Lee’s inclusion on Trump’s list as his primary reason. “For some time, I have been seeking greater specificity on this issue, and today the Trump campaign provided that, releasing a very strong list of potential Supreme Court nominees—including Senator Mike Lee, who would make an extraordinary justice—and making an explicit commitment to nominate only from that list. This commitment matters, and it provides a serious reason for voters to choose to support Trump,” he wrote in a Facebook post.84

  The publication of a list of hard-core conservatives in the middle of a general election campaign spoke to how different Trump was from a traditional Republican. Most GOP candidates run to the right during the primaries, only to tack to the center during the general election campaign. Trump’s approach was to stay right where he was but force his opponent farther to the left.

  Trump thought his list showed that he was for something. If Hillary Clinton provided her own short list, it would make her appear more radical. She was in a difficult situation, for she had to support Obama’s nominee, Judge Garland, while also signaling that her own nominees would be much farther to the left.85 Reflecting the prematurely triumphant mood of the left, Mark Tushnet of Harvard Law School argued that Democrats controlled the courts and should act like it by becoming even more aggressive in their push to enact a liberal agenda.86

  In the final presidential debate, Clinton offered a list not of names but of political requirements for prospective justices. Specifically, she wanted a justice who would back women’s rights and LGBT rights, support Roe v. Wade, and reverse the Citizens United decision to get “dark money” out of politics.87 She often railed against the Citizens United decision, but she was rarely called to account for criticizing a case that decided whether it was a campaign finance violation to publicly screen a film criticizing . . . Hillary Clinton. These desiderata did not form a consistent, principled judicial philosophy so much as a wish list for liberal special interest groups.

  When Trump shocked the world by winning, exit polls showed that the Supreme Court was at the top of the list for many voters. The list had played a huge role.

  The ensuing transition was fairly chaotic. The chief of staff and White House counsel are usually named the day after the election, but Trump took several weeks to decide who would run his White House. Warring factions led multiple transition efforts, and McGahn was occupied with three recounts and other legal issues.

  A week after Trump’s victory, Leo and Bunch were summoned to Trump Tower to winnow the twenty-one names on the updated list to a more manageable list for final vetting. They met with President-Elect Trump, his adviser Kellyanne Conway, and the incoming attorney general, Jeff Sessions. Bannon, Republican National Committee Chairman Reince Priebus, and Ivanka Trump also attended portions of the meeting. McGahn was away on lingering campaign business, including multiple recounts. He was under consideration for White House counsel, and at that meeting Leo, knowing the role would be decisive for the success of Trump’s judicial selection process, argued strongly in McGahn’s favor.

  Trump began the meeting by discussing how consequential the Supreme Court issue was for voters. He knew the polling data, which showed that 26 percent of Trump voters said the Supreme Court was the basis of their decision.88 Trump joked that Clarence Thomas’s name received more applause at rallies than his own.

  The president-elect told the group he wanted a nominee who was young enough to serve for decades, exceptionally well qualified, not weak, and would interpret the Constitution as the framers intended.89 Further discussion revealed that Trump cared a great deal about credentials, seeking someone at the top of the legal profession. He wanted someone who would not be swayed by the political and social fashions of the day, someone who would be courageous in his decisions. The group discussed the courage and independence that had made Scalia special, and at Leo’s recommendation, Trump even called Maureen Scalia to discuss her husband.

  Leo provided a list of six names who he said matched Trump’s criteria well: Colloton, Gorsuch, Hardiman, Pryor, Sykes, and Thapar.

  Leo, on leave from the Federalist Society to work on the transition, conducted screening interviews with the short-listers, covering a range of topics. Some of his questions were predictable enough, the kind the judges themselves might ask a potential clerk: Who’s the best judge of your lifetime? Who was the best judge before that? What are the strongest arguments for and against textualism and originalism? He probed their judicial philosophy, asking what made their own philosophy attractive and what was the most difficult question they had struggled with on the bench. Finally, he t
ouched on the issue of fortitude, asking them to speculate what caused so many judges to drift from their judicial philosophy and first principles.

  Some talked about the “Greenhouse effect,” which was Judge Laurence Silberman’s term for the influence of the media, personified by the notoriously liberal Linda Greenhouse of the New York Times.90 Others cited the corrupting effects of power. Everyone handled the interviews well. Gorsuch described the importance of courage, recalling how his mother, Anne, had been targeted politically when she worked in Washington as the administrator of the Environmental Protection Agency under Reagan.

  “The ‘not weak’ category became pretty damn clear,” Leo said.

  Short-listers then met with McGahn one-on-one at Jones Day, where he gave them their “sex, drugs, and rock-and-roll” screening. They also discussed judicial philosophy. This was the first time many of them had met McGahn.

  The next interview was conducted by a panel put together by McGahn. It included himself, Vice President Elect Pence, Bannon, and Priebus. He feared Priebus would try to make it a typical Republican process. He also included Pence’s counsel, Mark Paoletta, who had worked on nominations going back to Clarence Thomas.

  Meanwhile Pence, McGahn, and Marc Short, the White House director of legislative affairs, headed over to Capitol Hill to talk to senators about whom they wanted to see on the Supreme Court. The list of twenty-one names had been public for months, but some Democrats said they hadn’t seen it. Senator Murkowski expressed support for Gorsuch. Many senators expressed concern about Pryor. Senator Collins pointed out that she had voted against Pryor when he was confirmed to the court of appeals in 2005 because he had once described Roe v. Wade as the “worst abomination in the history of constitutional law.” She would be unlikely to change her vote if he were nominated to an even higher court.

  While Kethledge, who had become a short-lister, had an extremely successful interview and the enthusiastic support of the vice president elect, he had a shorter and less illuminating paper trail than several of the others. Pryor hit it out of the park in his interview, but there were concerns that he might not pass through the Senate, which still had a filibuster rule enabling the minority party to kill a nomination with only forty votes. Hardiman also had a strong interview and less opposition. Sykes’s interview was satisfactory.

  Pence showed each candidate a graph from the New York Times showing the ideological slide justices took after confirmation—almost always to the left. It’s a trend that conservatives regularly bemoan. One conservative justice said newcomers to the court have to be prepared to stand up against the American Bar Association, business groups, and the liberal media. They have to be prepared to be disliked and to accept that nasty and unfair things will be said about them. And they have to be confident in their ability to analyze cases and not be influenced by liberal law clerks.

  Pence asked candidates to explain the drift, and he received a range of answers: the influence of liberal media, Washington elites, their peers. Each candidate was asked whom he or she would pick if he or she were not chosen. Everyone picked Gorsuch. Kethledge strongly advocated for him, and Pryor discussed a criminal law decision Gorsuch wrote that helped him understand a key issue. Gorsuch was the only one who didn’t name his choice, but he declined for a compelling reason. He praised them all but said he couldn’t make a decision until he read each candidate’s complete record. His judicial colleagues’ answers gave the vetting team further comfort about Gorsuch.

  The short-listed candidates next met with the vice president elect. Of those, Pryor, Hardiman, and Gorsuch were interviewed, in that order, by the president-elect in the presence of McGahn at Trump Tower in January. They were the best of show in three categories. Pryor was the best conservative darling, Hardiman was the best representative of the Trump voter, and Gorsuch was the best with the typical elite résumé.

  McGahn prepped Trump before the interviews, explaining to the businessman the need to be careful to not say anything that could be construed as a request for a commitment to rule in a certain way on any issue, for senators would ask the nominee if such a commitment had been requested. Trump was impressed by all the candidates, but Gorsuch ended the day as he began it—as the front-runner.

  While many people participated in the selection process, Leo and McGahn felt strongly that it needed to be the president’s decision. After Trump chose Gorsuch, the confirmation process ran like clockwork, culminating in his confirmation on the target date of April 7, which McGahn had set back in December, before Trump even took office.

  Two months later, Leo and McGahn talked to the president about refreshing the list. They mentioned Kavanaugh’s name again. Clement, the other popular D.C. figure left off the first lists, was also discussed. But as Clement had never been a judge—and reportedly wasn’t interested in a lower-court position—he had no demonstrable record of how he would perform on the bench.

  It was a tumultuous summer at the White House. Priebus was fired as chief of staff and there were riots in Charlottesville. Leo and Trump met for dinner in September and talked more about judicial confirmations. An updated list was assembled in October and early November, and released on November 17 in the middle of the Federalist Society’s annual lawyers’ convention in D.C. The list now included four newly confirmed judges: Amy Coney Barrett of Indiana, Kevin Newsom of Alabama, Britt Grant of Georgia, and Patrick Wyrick of Oklahoma. And—raising the eyebrows of everyone who knew what his inclusion signaled—Brett Kavanaugh.

  CHAPTER THREE

  Complicit in Evil

  “These things are won or lost in the first forty-eight hours,” Kavanaugh would always tell his students when he taught about judicial confirmations in his Supreme Court and Separation of Powers class. He had learned this from reading the history of confirmation battles, but also from his experience at the White House. President George W. Bush announced his nomination of John Roberts to the Supreme Court in a prime-time televised address, making a compelling case for the judge’s qualifications. Democratic senators said they’d keep an open mind. The harshest criticism in the wake of the announcement was an attack in the Washington Post on the seersucker suit worn by Roberts’s young son, a tasteless jab that simply increased sympathy for the Roberts family.1 He was confirmed by a vote of seventy-eight to twenty-two.

  By contrast, Harriet Miers’s nomination was probably lost in the first ten minutes. President Bush asked conservatives to trust him when he nominated his White House counsel, who had no experience as a judge. “I’ve known Harriet for more than a decade. I know her heart. I know her character,” Bush said.2 Democratic senator Harry Reid praised her, but by sidestepping the conservative legal movement, the president forfeited the confidence of the individuals and organizations whose support he needed, and the ill-considered nomination was quickly withdrawn. And most famously, Judge Bork’s nomination was defined by Senator Kennedy’s brutally unfair “Robert Bork’s America” speech, delivered within minutes of the announcement.

  As he had done with the Gorsuch nomination the previous year, President Trump announced his selection of Kavanaugh in a prime-time speech delivered to an audience in the East Room of the White House. Trump thanked Justice Kennedy, who was in Europe, for his “incredible passion and devotion” and “lifetime of distinguished service.” He praised Kavanaugh as a “judge’s judge,” a “brilliant jurist, with a clear and effective writing style, universally regarded as one of the finest and sharpest legal minds of our time.”3

  Trump, always conscious of stagecraft, had been keen to have Ashley Kavanaugh and her daughters, ten-year-old Liza and twelve-year-old Margaret, next to the judge for the announcement. Both girls handled the nationally televised event well. They’d been told to treat it as if they were at the front of the gym on awards night at Blessed Sacrament School. If they got scared at all, they were to look over at MarMar, their grandmother, in the front row. Ashley had spent years in the White House, and she enjoyed the reunion with the permanent s
taff, including photographers she’d met during the Bush administration.

  Liza, giving her father a low five, seemed perfectly at ease. Earlier in the evening, she’d comfortably chatted with President and Mrs. Trump. At his confirmation hearings a few months later, Kavanaugh joked that she called this her “television debut.”

  Part of the stagecraft was keeping the identity of the nominee a surprise. Kavanaugh knew not to tell anyone that Trump had chosen him, and he didn’t. Not even Ashley, though he did tell her it looked “good” following the meeting at the White House the previous evening. The clerks noted that he returned to his chambers several hours late and in his suit and seemed particularly focused on finishing his speech, but he didn’t say a word about it to them. He told them to prepare as if he would get the nomination, and if he didn’t, they’d all go out to dinner anyway.

  The White House had prepared rollouts for each of the finalists, and even people at the highest levels didn’t know that Kavanaugh was the choice until the last moment. Claire Murray of the White House counsel’s office had to cut her family vacation short to work on the Hardiman rollout, even though Kavanaugh, unbeknownst to her, had already been chosen. McGahn’s deputy, Annie Donaldson, knew Kavanaugh had been chosen, but her husband, Brett Talley, who was also working on judicial selections for the White House counsel, was kept in the dark—something he would tease her about, particularly since she’d also been discreet about Kennedy’s retirement.

  The press was consumed with speculation throughout the day. Kavanaugh arrived at the White House at midday and continued revising his speech from the Lincoln Bedroom, asking assistants to print updated versions. Ashley understood the need for discretion but also worried about making plans. It would take time to get the judge’s parents down to D.C., and she and the girls would need to be dressed and ready to go. He agreed to call his parents, confirming that the nomination was on.