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

  CONTENTS

  CHAPTER ONE

  The Primary

  CHAPTER TWO

  The List

  CHAPTER THREE

  Complicit in Evil

  CHAPTER FOUR

  Mootings, Meetings, and Mobs

  CHAPTER FIVE

  All Hell Breaks Loose

  CHAPTER SIX

  Delay, Delay, Delay

  CHAPTER SEVEN

  Too Big To Fail

  CHAPTER EIGHT

  Fear of Flying

  CHAPTER NINE

  Miracle

  CHAPTER TEN

  The Anteroom Where It Happened

  CHAPTER ELEVEN

  Mrs. Collins Goes to Washington

  CHAPTER TWELVE

  Legitimacy

  Note to readers

  Acknowledgments

  About the Authors

  Notes

  Index

  To Our Lady of Victory—CCS

  To Mark—MZH

  CHAPTER ONE

  The Primary

  With a rap of his gavel on June 27, 2018, Chief Justice John Roberts declared another Supreme Court term over, and the nine justices disappeared behind the dark red curtains that hang behind the bench. The assembled journalists politely stood at attention until the last justice was out of view, then rushed to file stories about a non-event—no justice had announced his retirement. Speculation had been running high that Justice Anthony Kennedy, appointed by President Ronald Reagan and nearly eighty-two years old, would be leaving now that a Republican again occupied the White House. Senator Charles Grassley of Iowa had publicly advised the justices in early May that if they were “thinking about quitting this year, do it yesterday.” Grassley, and the powerful Senate Judiciary Committee he chaired, would have to manage the intense confirmation process, and with the midterm elections looming, they would need all the lead time they could get.

  The members of the Court retired to their private dining room for the traditional end-of-term luncheon before they dispersed for the summer. As they dined, an armored black car, dispatched from the White House Military Office, pulled into the parking garage three floors below them. After his meal, Justice Kennedy got into the car, where Don McGahn, the White House counsel, was waiting to take him to a meeting with President Trump.

  It was a busy day at the White House, the president having held a mid-morning press conference on trade policy and the economy on the South Lawn. After lunch with Secretary of State Mike Pompeo, he would host President Marcelo Rebelo de Sousa of the Republic of Portugal. The press usually lingered around the famous but surprisingly small briefing room at the north side of the mansion, hoping to catch additional stories or details from their White House contacts.

  The day before, Steve Engel, the head of the Justice Department’s Office of Legal Counsel, had told McGahn’s trusted chief of staff, Annie Donaldson, that he had just had a meeting with his old boss and needed to talk to McGahn. It took a minute for the significance of what he’d said to register. Engel’s old boss was Anthony Kennedy. He’d clerked for him at the Supreme Court in 2001–2002, and they had remained close.

  Engel and Kennedy had met two days before the end of the term at an outdoor café near the National Gallery of Art’s Sculpture Garden. Kennedy had slipped away from a tour of the museum with his clerks to meet Engel, hoping the location was discreet enough to avoid wandering members of the press. After the justice’s security detail evaluated the café for threats, he sat down with Engel and explained that he expected to announce his retirement in the next few days. He wanted to tell his fellow justices immediately after their final sitting on Wednesday but knew the odds were good that the news would leak shortly thereafter.

  Hoping to deliver the message to the president in person before it went public, Kennedy wanted Engel to ask McGahn to arrange a meeting without anyone’s noticing. Later that day, Engel called the White House counsel’s office and asked about the president’s schedule. The two offices spoke frequently, so the question didn’t arouse suspicion. He was told the president was leaving for the Midwest on Wednesday evening, so the meeting would need to happen before then.

  The next day, Kennedy gave Engel the green light, and the White House counsel’s office quietly arranged the meeting through Jeffrey Minear, counsel to Chief Justice Roberts. A White House car with a pre-cleared driver would make the entry into the White House quick and easy. Chief of Staff John Kelly arranged for President Trump to leave his lunch promptly at one o’clock and come to the White House residence, where the justice would be waiting with McGahn.

  That morning, none of the other associate justices knew that Kennedy was stepping down. The scholarly Californian, known as a swing vote on the Court, had hired four clerks for the coming year and had discussed cases coming up in the next term. When the term ended with no announcement from the bench, the justices proceeded to their stately, paneled conference room for one final discussion.

  While the nine justices often disagree sharply about the issues before the Court, they know they are working together for life, so they go out of their way to be friendly to one another. But the last conference of each term tends to be a bit testier. The most contentious decisions are usually released in the final days of the term, justices sometimes reading their fiery dissents from the bench, and the 2017–2018 term ended with its share of high-profile five-to-four decisions on such hotly debated subjects as abortion and immigration.

  When the justices had concluded their business—voting on the disposition of cases related to their recent decisions—Kennedy informed his shocked colleagues that he had decided to retire. He asked them to not tell anyone until two o’clock so he could speak with the president privately.

  No one from the press noticed Kennedy’s arrival at the Executive Residence, which was chosen for the meeting because of its relative privacy. The Oval Office’s large bank of windows makes it a fishbowl for prying eyes. Kennedy and Trump chatted pleasantly for about twenty minutes until, feeling the time was right, the justice handed the president an envelope. Inside was a letter dated June 27, 2018, beginning, “My dear Mr. President,” a sign of the genuine “affinity,” as one observer put it, that the two men had for each other.1 The letter was Kennedy’s formal announcement of his resignation.

  President Trump was surprised by Kennedy’s retirement but not unprepared. He had heard rumors the previous year that after more than forty years as a federal judge, Kennedy was thinking about a change. His judicial nominations team wanted to reassure the justice, without applying pressure, that his legacy would be in good hands if he retired. Kennedy was disliked by many conservatives for his opinions redefining marriage2 and upholding Roe v. Wade.3 But many conservatives simultaneously supported his approach to federalism and the First Amendment, particularly as it concerns free speech. The White House indicated to him that his record would be treated respectfully and that his successor’s confirmation battle would not be a referendum on his tenure. When the White House got word that Kennedy was displeased one of its nominees for an obscure federal court had called him a “judicial prostitute,” the nomination was allowed to expire.

  The stature of a justice is measured not only by the influence of his legal opinions but also by the careers and reputations of the clerks he has handpicked and mentored. The White House had sought Kennedy’s opinion about his former clerks who were under consideration for the federal judiciary and had nominated several of them to prestigious appeals c
ourts. Most flattering of all, Trump had chosen one of Kennedy’s star former clerks, Neil Gorsuch, to join him on the Supreme Court one year earlier.

  In his letter to the president, Kennedy said that on July 31 he would assume “senior status,” a semi-retirement that would enable him to continue to serve in a reduced capacity in the lower federal courts, but his days on the high court would be over. Having informed the president privately of his retirement, Kennedy returned to the Supreme Court building, no one the wiser as to what had just taken place. The biggest secret in town had remained a secret until the end. Justice Kennedy was retiring on his terms. The news was then released, and it rocked Washington.

  Conservatives were elated at the opportunity to replace Kennedy with another Trump appointee. When a group of Republican senators, including the majority leader, Mitch McConnell of Kentucky, heard the news at a lunch, they looked up at each other and smiled. Not only would this be an opportunity to strengthen the Court, but in a midterm election year, a nomination fight could excite conservative voters and remind them of the importance of keeping control of the Senate. Senator Grassley, already miked up for his weekly conference call with Iowa reporters, heard the news while on air. Afterward he told his staff, “I guess we’re going to do this.”

  News of Kennedy’s retirement touched off a minor media maelstrom. “Abortion will be illegal in twenty states in 18 months,” CNN’s chief legal analyst, Jeffrey Toobin, tweeted.4 Other outlets entertained even crazier possibilities. The New York Times noted that Kennedy’s son worked for Deutsche Bank, the same bank that had provided the Trump organization more than one billion dollars in real estate loans.5 There was no reason to think that President Trump’s acquaintance with Kennedy’s son was nefarious, but the Times report launched all manner of conspiracy theories. Neera Tanden, the president of the influential liberal think tank Center for American Progress, tweeted, “Just to state this: Justice Kennedy’s son gave a billion dollar loan to Trump when no one would give him a dime, and Justice Kennedy has been ruling in favor of the Trump Administration position for 2 years as the Court decides 5-4 case after 5-4 case.”6 Why a Deutsche Bank loan to Trump would make Kennedy beholden to the president rather than the other way around was never explained, but Tanden’s theory was retweeted twenty-one thousand times. Both the Washington Post and Politifact eventually ran fact checks that debunked the supposed conspiracy between Kennedy and Trump.7

  When Kennedy’s retirement was announced at a Democratic National Committee meeting, participants gasped and expressed concern. Because of his liberal rulings on abortion and same-sex marriage, Democrats and progressives considered Kennedy the best of the Republican-nominated justices.

  But for all of their fawning over him when he reached conclusions they liked, liberals did not respect Kennedy. They turned on him immediately when he gave Trump the opportunity to name his successor, adopting some of the same criticisms conservative critics had leveled in the past. Ian Millhiser of ThinkProgress sneered, “Justice Kennedy was a Cadillac’s intellect in a Lamborghini’s job,” highlighting Lawrence v. Texas, the case that overturned anti-sodomy laws, as “an opinion that was constructed largely from discarded Age of Aquarius lyrics.” Of his opinion in Planned Parenthood v. Casey, in which Kennedy famously changed his vote to uphold Roe v. Wade, Millhiser wrote that he agreed with the outcome, but “the problem is that its hippie-dippie, decidedly unlegal language renders its rule vulnerable.”8

  That same night, MSNBC’s Chris Matthews told Senate Democrats they had to do what they could to obstruct and delay the nomination past the midterms in the hope that the Democrats, a one-vote minority after winning a valuable seat from Alabama the year before, would take control of the upper house.9 McConnell had already promised that Trump’s nominee would be voted on “this fall.”10 But first there had to be a nominee.

  A president’s appointments to the Supreme Court shape his legacy more than almost any other decision he makes, but each administration handles the selection of nominees in its own way. The death of Justice Antonin Scalia early in the primary season of the 2016 presidential campaign and the Republican-controlled Senate’s refusal to consider President Obama’s nomination of Judge Merrick Garland as his successor guaranteed a vacancy on the Court for the next president to fill. Hoping to reassure Republican voters who doubted his reliability to appoint a conservative, Donald Trump had released a list of possible nominees to the Supreme Court during the primary elections—an unprecedented but successful political stroke. For that first Supreme Court nomination, the list was whittled down to top contenders, who interviewed before a limited panel of key advisors. A few of those contenders interviewed with President Trump. He chose Judge Neil Gorsuch of the Court of Appeals for the Tenth Circuit, and the relatively smooth confirmation of this conservative originalist from Colorado was seen as one of the key victories of Trump’s first year in office.

  The list had been expanded with five new names in November 2017 and now included Judge Amy Coney Barrett of the Seventh Circuit and Judge Brett Kavanaugh of the D.C. Circuit, the latter of whom had clerked for Justice Kennedy the same year as Gorsuch. Upon Kennedy’s retirement, Trump announced that he would again select his nominee from that list.

  A weakness of the judicial selection process in recent Republican administrations has been the involvement of too many people. The inevitable rival factions in the White House and the Department of Justice knocked out one another’s top contenders and settled on consensus candidates who often proved disappointing. Trump’s Justice Department was led by Attorney General Jeff Sessions, who had recused himself from overseeing the department’s far-reaching investigation into whether Trump had colluded with Russia to steal the 2016 election. That conspiracy theory, a major distraction for the Trump administration in its first two years, was eventually debunked with the release of Special Counsel Robert Mueller’s report in April 2019. Sessions’s self-imposed inability to manage the destructive investigation damaged his relations with the White House and the Justice Department. He had played a limited role in judicial selection, as had the Office of Legislative Affairs and most other executive offices apart from the White House counsel’s office. The judicial selection and confirmation process to that point had received extremely positive press coverage and enjoyed the approval of the president’s supporters, so when Justice Kennedy retired, it was decided to keep the team that had won last time on the field.

  Inside the White House, the counsel’s office had handled not only the Gorsuch nomination but dozens of other federal court nominations, and although they had no advance notice of Kennedy’s retirement, they were prepared for it. They had refreshed the list months earlier in anticipation of a Supreme Court vacancy. Deputies had constantly updated files of prospective nominees, all of whom had already been vetted. Within a day of Kennedy’s announcement, word leaked that two of his former clerks, Judge Ray Kethledge of the Sixth Circuit and Kavanaugh, were the front-runners for the open seat, while others said the top two were really Kavanaugh and Barrett.

  The press soon became a problem for Kavanaugh, staking out his house and following him everywhere. At the suggestion of his colleagues on the court of appeals, including a cordial Merrick Garland, he was eventually assigned a security detail, including a car with federal marshals to drive him around.

  In his twelve years on the D.C. Circuit, Judge Kavanaugh had authored more than three hundred opinions, always guided by the text and original meaning of the Constitution. He was known as a uniquely effective jurist, and the Supreme Court had adopted his reasoning in at least thirteen decisions.11

  Despite his illustrious pedigree—Yale College and Law School—he was down to earth and affable. The fit, fifty-three-year-old, Irish-American Catholic with a full head of hair and a quick sense of humor was well liked by his colleagues and friends and always had been.

  He was on the president’s list of potential nominees by the time rumors of Kennedy’s retirement began to circulate, b
ut he had not been given any advance warning by the justice. Nevertheless, he had put off finalizing his family’s vacation plans until the end of the Supreme Court term, just in case. When the final session ended with no retirement announcement, he texted his wife, Ashley, to go ahead and make summer plans with their daughters, Margaret and Liza. By the time he returned from lunch, McGahn had called to tell him the news. Vacation planning would have to wait; the White House counsel wanted to interview him in his chambers on Friday.

  McGahn already knew Kavanaugh, who had administered his oath of office for the Federal Election Commission in 2008. McGahn was exceedingly familiar with his judicial philosophy, having pored over his opinions. The interview that Friday was not about his opinions but about any potentially embarrassing information the White House needed to know before deciding. Known as an “SDR” review—short for sex, drugs, and rock and roll—this kind of interview became common after the failed Supreme Court nomination in 1987 of Judge Douglas Ginsburg of the D.C. Circuit, who was forced to withdraw after reports emerged that he’d smoked marijuana with some of his students while a professor at Harvard. Before Anthony Kennedy was nominated for the same seat, he was confronted with hundreds of embarrassing questions about when he’d first had sex, with how many different women, and whether any pregnancies had resulted. He was asked about sexually transmitted diseases, aberrant sexual activities, drug use, drunk driving, and even animal abuse.12

  Kavanaugh’s interview with McGahn went well, but he knew it would ultimately be President Trump’s decision. He’d had an up-close view of the Supreme Court selection process when he served as White House staff secretary under President George W. Bush, seeing how judicial advisors would narrow down a list of contenders before presenting the finalists to the president so that he could take their measure. He wasn’t entirely sure Trump would like him.

  A D.C. native who had worked closely with President Bush, Kavanaugh was not what the anti-establishment Trump was looking for. The Bush family had publicly opposed Trump, and the disdain had been mutual. Trump defeated former Florida governor Jeb Bush in the 2016 Republican presidential race by brutally criticizing his brother George’s record as president. Kavanaugh’s name hadn’t even appeared on Trump’s initial lists of prospective Supreme Court nominees.