Supreme Ambition: Brett Kavanaugh and the Conservative Takeover - Softcover

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Ruth Marcus, a syndicated columnist for The Washington Post and deputy editor of the editorial page, has covered every major institution in Washington, including the Supreme Court, the White House, and Congress, and has written about judicial confirmation battles stretching back to Robert Bork in 1987. A graduate of Yale College and Harvard Law School, she was a finalist for the Pulitzer Prize in commentary in 2007.   

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Chapter One: The Missing Man

CHAPTER ONE The Missing Man

In the summer of 2016, Brett Kavanaugh was celebrating his tenth year on the bench, and his growing ranks of law clerks had gathered for a reunion. This one, held in June at the Chevy Chase Club, not far from Kavanaugh’s home, came at an odd, even awkward moment, with Donald Trump about to claim the Republican nomination. Some of the clerks were Democrats, and though more were Republicans, few if any were Trump Republicans. All of them, it is safe to say, had been astonished a few weeks earlier when Trump released a list of eleven potential Supreme Court nominees that was notable for the name it did not include: Brett Kavanaugh. By this stage in his career, Kavanaugh was an obvious if not leading choice for any Republican president or presidential contender. He had been on Mitt Romney’s short list for the Supreme Court during the 2012 campaign and no doubt would have been at the top of the roster for any of the establishment GOP candidates in 2016, such as Jeb Bush and Marco Rubio, except that they had long before fallen to Trump.

Still, at that point the prospect of the blowhard New York reality television star actually winning the presidency seemed fanciful. So when Travis Lenkner, an early Kavanaugh clerk who was serving as master of ceremonies for the event, referred to Trump’s glaring omission, it was more in the nature of gentle joshing than painful jab. Here’s to Judge Kavanaugh, he toasted—the twelfth man on Trump’s eleven-person list.

Trump had been toying with the notion of that list for months before the plan became public. Before the Iowa caucuses, when New Jersey governor Chris Christie, at the time a Trump rival but also a friend of long standing, asked Trump how he was going to manage the problem of attracting evangelicals, Trump threw out a suggestion: what about getting the Federalist Society to produce a list for him? Good idea, Christie responded; you should talk to Leonard Leo. Trump wasn’t going to secure the nomination, he figured, so offering Trump advice was like giving away snow in winter.

Ted Cruz, the conservative senator from Texas, came in first in the Iowa caucuses on February 1, thanks in large part to his support among evangelicals, the very constituency that Christie had identified as a Trump vulnerability. Trump won the New Hampshire primary eight days later. Then came the event that upended the campaign—and, as it played out, helped catapult Trump to victory. Don McGahn, the Trump campaign’s general counsel and, in his spare time, guitar player for a rock-and-roll cover band, was on his way to a gig that Saturday afternoon when he received a text from his wife: “Scalia died.”1 McGahn pulled to the side of the road to collect his thoughts. There was a primary in South Carolina that night, and the candidate needed to be prepared for questions on this new front.

Scalia’s death generated an instantaneous miniversion of the Trump list—and the first inkling that Kavanaugh might have a problem making it. As Trump did his once-over-lightly form of debate prep later that day—forty-five minutes in a room with key advisers as well as others who called in—McGahn pressed the point: the candidate couldn’t simply rely on a generic pledge to name a justice in the Scalia mold. That wouldn’t be convincing, not from Trump. Voters listening to the debate wouldn’t have any worries about Cruz filling Scalia’s seat, McGahn argued. Trump, on the other hand, was an unknown, and untrusted, quantity. He had been, not so long ago, in favor of abortion rights and a ban on assault weapons. He needed to back up his promises with some specifics. So that evening, when moderator John Dickerson of CBS raised Scalia’s death as the first question of the debate, Trump not only echoed McConnell in calling for “delay, delay, delay” until a new president could be elected, he also took the unusual step of volunteering names of those he would consider for the vacancy. “We could have a Diane Sykes, or you could have a Bill Pryor, we have some fantastic people,” Trump offered. Those names were significant—a calculated signal to the conservative base that Trump would pick judges to their liking.2

Sykes, a former justice of the Wisconsin Supreme Court named to the Seventh Circuit by George W. Bush, was a darling of social conservatives for, among other things, striking down the Affordable Care Act’s requirement that employers provide no-cost contraceptive coverage, a mandate that Sykes said infringed on the religious freedom of Catholic business owners.3 She had attracted the attention of McGahn, an election lawyer who detested campaign finance regulation, with a ruling striking down major parts of Wisconsin’s campaign finance law on First Amendment grounds.4 (After the election, Sykes made it to a first-round interview with the president’s advisers. But Trump was put off by her marriage to a leading Republican Trump critic, talk radio host Charlie Sykes, although he kept forgetting the key fact: the Sykeses were divorced.)

Pryor, a former attorney general of Alabama tapped for the Eleventh Circuit by Bush, was even more controversial—and therefore an even more potent signal for Trump to send to conservatives. Among other things, Pryor had dismissed the Supreme Court as “nine octogenarian lawyers” and criticized Roe v. Wade as “the day seven members of our highest court ripped the constitution and ripped out the life of millions of unborn children.”5

As McGahn later described Trump’s approach to the debate, “I knew then that President Trump was a different kind of guy. For him to go up in a debate and say ‘Judge Pryor’ showed me he was the real deal when it was going to come to judges. There was no hesitancy. There was none of this, ‘Well, you know, who are the moderates?’?”6

There was one name McGahn floated on the night of Scalia’s death, as his candidate did his debate prep, that Trump waved off. No one from the swamp, Trump instructed. That meant no Kavanaugh.

There was another, related problem as well. “When people think of Brett,” one campaign official explained, “they think of Bush.” That was not exactly a plus in Trumpworld, and certainly not with the candidate himself. Jeb Bush, the brother of the president for whom Kavanaugh had worked, was still in the race—he dropped out a week later—and even after that the hostility between the Trump and Bush camps festered.

Scalia’s death—and McConnell’s vow to hold the seat open for the next president—transformed the campaign equation. For voters in the Republican base—far more than for Democrats—courts, and the Supreme Court in particular, are always a motivating force. These voters are tired of what they view as unelected judges writing policy preferences into constitutional law. For decades, these liberal judges prevented ordinary citizens from protecting the lives of the unborn and from allowing their children to pray in school. Now they were trying to tell them not only that gays and...