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

by Mollie Hemingway

  These were trying days for Ashley Kavanaugh. She had met her husband in 2001, when they both worked in the White House. Having begun her service to George W. Bush as a personal secretary when she was still a student at the University of Texas and he was governor, she came to the White House after working on his presidential campaign. She was from Abilene, a couple of hours from Midland, where Bush had grown up. A warm and welcoming woman with a kind smile and an easy laugh, Ashley Estes was beloved by her colleagues. She was encouraging, optimistic, determined, and, importantly, tough.

  Kavanaugh and Ashley had crossed paths early in the Bush presidency, while he was working as an associate counsel in the White House counsel’s office. She found him nice, perhaps too nice, and wasn’t sure she was interested in him. Friends encouraged her to give him a shot. Finally, on September 10, 2001, she had a late dinner with him at Cafe Deluxe in Georgetown after work. They had a nice time, but the next morning everything changed. They were evacuated from the White House after terrorists attacked the World Trade Center and the Pentagon and it looked like another airliner was headed their way. Kavanaugh distinctly remembers watching her, in a black-and-white-checked shirt and black pants, running down West Executive Avenue, the closed street that borders the West Wing.

  Amid the trauma and intense activity in the White House following 9/11, they paused their dating, but Kavanaugh, a baseball fan, eventually took her to Cal Ripken’s last game on October 6, the first of many sporting events they’d attend together. It was a busy and stressful period at the White House, but they made time for each other. They were discreet about their relationship, but after a year or so, one of Laura Bush’s personal aides let the news slip. The Bushes were immediately supportive, and the president began good-naturedly teasing them. When Kavanaugh became staff secretary in July 2003, Ashley’s work and his began to overlap. He also saw more of President Bush, who encouraged the two to get married. They were engaged by Christmas of that year and celebrated a Texas-sized wedding the next July in D.C. President and Mrs. Bush even hosted a party for them in the Rose Garden a couple of days before the wedding.

  After Bush’s reelection, Ashley decided to leave her position, which required extremely long hours. When she discussed her options with President Bush, he encouraged her to consider a few different paths, including having children, telling her she’d make an excellent mother. That night, spurred on by the conversation, she went home and took a pregnancy test. She was pregnant with her and Brett’s first child, Margaret. The Bushes were thrilled by the good news. President Bush always said Ashley was a good soul, and everyone around her found her a source of cheer. She left the White House but stayed in the Bush fold for an additional six years, albeit in a less intense position, helping set up the George W. Bush Presidential Library.

  The Kavanaughs genuinely loved the Bushes and admired the president’s character and how he treated his wife, friends, and employees. President Bush nominated Kavanaugh to the U.S. Court of Appeals for the D.C. Circuit in 2003, although his confirmation took three years and two separate nomination hearings because of obstruction from Senate Democrats. They were outraged that someone who had worked on the Whitewater investigation of President Clinton and was so closely associated with President Bush would be elevated to the federal bench, but in 2006 he was finally confirmed.

  Perhaps because that earlier confirmation battle had been so brutal, Ashley prayed that God would deliver them from another. They had a wonderful life with their children and with both their jobs—she was now a town manager in Chevy Chase, Maryland. She was proud he was a front-runner for the Supreme Court, but she hoped he would not be nominated.

  President Trump, relying on the recommendation of his judicial advisors, saw this as Kavanaugh’s race to lose. But he sought advice from a wide variety of sources, to the consternation of many who wished he would simply go with Kavanaugh.

  Part of the problem was the high quality of those from whom he had to choose. It was hard to disagree that Barrett, for instance, was an attractive pick. But she had been a judge for only a few months, which meant she had few opinions to analyze. Conservative groups usually require a track record before they endorse a nominee. In Barrett’s case, they felt the Catholic mother of seven who had defended her faith before the Senate Judiciary Committee could be counted on to stay strong in the face of liberal opposition. Part of her support came from outside groups who worried that any male nominee, in the wake of the #MeToo movement, would be accused of inappropriate sexual behavior, regardless of his merits.

  As much as the president and his advisors liked Barrett and trusted that she was an originalist, they knew she would have difficulty getting through a barely Republican Senate. When moderate senators whose votes were necessary had been asked for their advice early in the process, they had discouraged choosing her. The White House concluded that the decision not to nominate Barrett had been made by the people of Alabama when they elected a Democrat to the Senate the previous December. Losing that seat meant that the White House had almost no margin for error.

  Kethledge was also strongly considered, but he had not written the range of opinions that Kavanaugh had, and some of his opinions worried groups focused on strong immigration laws. Late in the process Trump became interested in Hardiman again, a judge with a history of good opinions, but perceived as lacking Kavanaugh’s depth of reasoning or commitment to originalism. Still, all had excellent opinions. All would be excellent justices.

  Vice President Mike Pence interviewed finalists, speaking with Barrett and Kethledge at a family lake house in Indiana and with Hardiman and Kavanaugh at the vice president’s residence in Washington. Pence asked Barrett, a fellow Indianan, who she thought should be nominated if not her. She strongly endorsed Kavanaugh.

  Kavanaugh’s interview with the vice president, on Independence Day, was a cordial chat that lasted more than an hour, in part because of the judge’s habit of answering questions thoroughly. In every interview, Kavanaugh wanted to perform well. He did not see himself as a shoo-in, and he knew how many finalists were reported to have stumbled in their meetings with the president and his team. He would not stumble.

  Kavanaugh was asked whom he recommended for the seat if not himself, and he praised multiple contenders, including Barrett. The world of federal judges is small, and Kavanaugh knew and respected several of the short-listers. He had become acquainted with Barrett through visits to Notre Dame Law School and discussions about candidates for clerkships. He had even attended her formal installation at the Seventh Circuit earlier that year. Kavanaugh and Kethledge and their wives had sat together at a reunion of Kennedy clerks the previous summer.

  President Trump spent the following weekend at his resort in New Jersey, but he continued asking people for advice.27 It may have been Kavanaugh’s race to lose, but losing was a real possibility. In multiple conversations with both formal and informal judicial advisors, the president went back and forth about the decision. McConnell was complaining about documents, and the base was pushing for a more exciting pick. And Kavanaugh was about as pure a specimen of the “Bush” Republican as one could imagine.

  Leonard Leo, the executive vice president of the Federalist Society, who had advised Bush and Trump on past Supreme Court nominations, told the president he had an extraordinary group of judges. He should pick whomever he felt most comfortable with and then own the decision. Leo’s advice was carefully considered. The Federalist Society, a powerhouse organization of lawyers, legal academics, judges, and law students, is the cornerstone of today’s conservative legal movement. It champions three core principles: (1) the state exists to preserve freedom; (2) the separation of governmental powers is central to the Constitution; and (3) the judiciary is to say what the law is, not what it should be. Other than that, the Federalist Society takes no policy positions, and robust debate is common and encouraged.

  McGahn and Leo had hoped Trump would make his announcement before the weekend, worrying that more time
would not improve the decision. Leo found out not only who was golfing with the president that weekend but who was slated to ride in his golf cart each round, and he spoke with two of them—Mike Ferguson, a former congressman from New Jersey, and Sean Hannity of Fox News. He told them that he would not be surprised if they favored a particular candidate but asked them not to speak ill of any of the potential nominees. He also asked them to impress upon the president that he had to own the decision and pick the person with whom he was most comfortable.

  Ferguson knew only Barrett, whom he thought the world of, but had a favorable view of the entire list because he respected Leo’s judgment. The president discussed the decision over golf and again that night at a dinner with many members of the Trump and Pence families. As he weighed the pluses and minuses of each candidate, Trump came to the conclusion that Kavanaugh would be among the safer choices.

  The evening before, the New York Times published what amounted to a plea from McConnell to not pick Kavanaugh. “McConnell Tries to Nudge Trump Toward Two Supreme Court Options,” was the headline of the article about McConnell’s strong preference for Kethledge or Hardiman, either of whom he thought would have a better chance of getting through the Senate. He’d cited the “millions” of pages of documents the Senate Judiciary Committee would have to sift through if Kavanaugh were the nominee.28

  White House advisors did not think paperwork was a deal-breaker, but Kavanaugh’s team knew that McConnell’s concern was not a good sign. His former clerks countered that the paperwork was actually a strength, showing he had a record and had been involved in public service. People should not be penalized for working to advance conservative principles.

  But then other articles appeared suggesting his front-runner status was in peril. The New York Times was playing up his closeness to the Bushes and reporting that his critics were passing around a photo of Bush’s political guru Karl Rove with his arm around Kavanaugh.29 He had always known that his Bush ties could be a problem, but it was a problem that was out of his control.

  Time magazine reported that “Kavanaugh had been considered a frontrunner, but his fortunes may be torpedoed by Trump’s grudges,” again citing Kavanaugh’s closeness to the Bush dynasty. The article ended ominously: “White House Counsel Don McGahn, a Kavanaugh booster, has largely stopped making the case for his friend, sources say.”30

  Saturday night, July 7, was a dark moment for the Kavanaugh team. It appeared that McConnell was opposed, McGahn had lost faith, and Trump was desperate to find another candidate. Gathered in the hot conference room, empty pizza boxes piled high, the team started coming to terms with their likely loss. Roman Martinez told stories about his time working for the U.S. government in postwar Iraq, finding parallels with the high-stakes political fights there. Later that night, Kavanaugh sent them an email encouraging them to act with dignity and remain calm no matter how the process ended, a sure sign that no one thought he would win the nomination.

  But they had to keep working. The White House was constantly asking for information, including lists of people who would be invited to a nomination announcement if Kavanaugh were selected. They had to prepare a speech for that event, however unlikely it now seemed, and Kavanaugh, who had taught a class at Harvard on the Supreme Court, knew it would be important. It would be his only chance to make a first impression on most of the country. And it would be his only public remarks before the confirmation hearings eight weeks later, an interval when the opposition could be counted on to raise a deafening howl. Chris Michel, a former Bush speechwriter who had also clerked for Kavanaugh, was helping with the speech. The judge himself was an experienced wordsmith, having worked on presidential speeches from the State of the Union on down, but his first draft clocked in at thirty-seven minutes, far longer than the five minutes that would be appropriate. “We’ve got to go long before we can go short,” he joked.

  Sunday arrived, and Trump called Leo again asking for his thoughts on Kavanaugh. Leo suggested that he meet with Kavanaugh again if he was so uncertain.

  Kavanaugh, a regular churchgoer, served as a lector at Blessed Sacrament parish in Chevy Chase every eight weeks. As Providence would have it, his turn was up again, and he was struck by the passage he would read that evening. It was from St. Paul’s Second Epistle to the Corinthians:

  Therefore, that I might not become too elated, a thorn in the flesh was given to me, an angel of Satan, to beat me, to keep me from being too elated. Three times I begged the Lord about this, that it might leave me, but he said to me, “My grace is sufficient for you, for power is made perfect in weakness.” I will rather boast most gladly of my weaknesses, in order that the power of Christ may dwell with me. Therefore, I am content with weaknesses, insults, hardships, persecutions, and constraints, for the sake of Christ; for when I am weak, then I am strong.31

  He thought the reading was so comforting that he shared it with his clerks. As affecting as he found the apostle’s words at that stressful moment, he could little imagine how apropos they would be in the coming months.

  On his way to church for the 5:30 Mass, Kavanaugh got a call asking if he could meet with the president again at seven o’clock that evening. He was wearing a coat and tie but not a suit. Ashley was just getting home from a lacrosse tournament with the girls. He called her to see if she could bring a suit to church and stick it in the car driven by his security detail. She met the car in the parking lot, rolled up the suit so it wasn’t obvious what she was carrying, and made the transfer.

  The marshals had told Ashley to clear herself and the girls out of the house. Whether or not her husband was chosen, the cameras already set up across the street would be following the family’s every movement, looking for clues about the nomination. So they packed their bags and left the home by a hidden passageway connecting their yard and the neighbors’, undetected by the press across the street. To hide their escape plans, they stashed their luggage in a neighbor’s tree house and asked a neighbor girl to retrieve it for them later. Then they went out to dinner as normally as possible. Afterwards, they made sure they weren’t being followed and instead of returning home drove to the house of close friends who were vacationing on Martha’s Vineyard.

  After Mass, Kavanaugh’s security detail switched cars in the Woodley Park neighborhood of Northwest D.C. to lose any potential tails, and he changed clothes as the car made its way to the White House. He met for more than an hour with the president and Melania Trump in the Yellow Oval Room, used for receptions for important guests, on the second floor of the White House residence. They discussed his background, his family, his views on the Court, and his impressions of Justice Kennedy.

  At the end of the conversation, President Trump told Kavanaugh he had made his decision. He wanted to nominate him to the Supreme Court. The confirmation, he assured his nominee, would be the quickest and easiest ever because of the judge’s impeccable credentials and background. He told him to have fun.

  The news, known only to a precious few, was overwhelming. No one suspected what had been set in motion.

  CHAPTER TWO

  The List

  Justice Scalia was dead.

  Almost thirty years after his appointment to the Supreme Court, Antonin Scalia was found dead in his bed at Cibolo Creek Ranch, a thirty-thousand-acre hunting resort near Marfa in West Texas. The seventy-nine-year-old jurist was the longest-serving member of the Court at the time of his death, but he kept an active schedule and was not ailing. Appointed by President Ronald Reagan, Scalia was beloved by conservatives for his sparkling wit, incisive intellect, and compelling advocacy of constitutional originalism, a judicial philosophy that pushed back on judge-driven constitutional “evolution” by attempting to interpret the Constitution according to its actual words as they were understood at the time of their ratification.

  Senator Mitch McConnell had just landed on St. Thomas in the Virgin Islands when he received the startling news from Leonard Leo. The 2016 presidential primary season was in full
swing, and McConnell and his wife, Elaine Chao, who had been the secretary of labor in the George W. Bush administration, had escaped to the Caribbean during the Washington’s Birthday holiday. He immediately went to the hotel and turned the television on.

  McConnell had first met Scalia at a staff meeting at the Department of Justice during the Ford administration, when McConnell was a lowly deputy assistant secretary for legislative affairs. Robert Bork was the solicitor general; Laurence Silberman, a future D.C. Circuit judge, was deputy attorney general; and Scalia was the assistant attorney general in charge of the Office of Legal Counsel. McConnell, intimidated by their sense of humor and brilliance, was worried he’d say something stupid and barely opened his mouth. He later returned to Kentucky and was elected to the U.S. Senate in 1984, just in time to vote for Scalia’s confirmation. Not that his vote was needed. Scalia was unanimously confirmed, becoming the first Italian American on the Court.

  After reflecting on the personal loss of a man he’d known for more than four decades, McConnell turned to thinking about how the Senate he led should handle the vacancy. What if the shoe were on the other foot, he wondered, and the Democrats controlled the Senate and a Republican president was in the last year of his term of office? Surely a Republican president would never get a Supreme Court nominee confirmed by the opposing party in an election year. Days later, his staff would tell him that his instincts were correct. There had been only three confirmations in the final year of a presidency when the opposing party controlled the Senate, most recently in 1888, when Grover Cleveland nominated Melville W. Fuller to be chief justice.

  President Obama’s own vice president, Joseph Biden, had given a floor speech in June 1992 when he was chairman of the Senate Judiciary Committee and George H. W. Bush was running for reelection, arguing that presidents should not try to fill a vacancy on the Supreme Court once campaign season was underway but should follow the example of “a majority of [their] predecessors” and wait until the election is over. Even if such a nomination were made, it should not be considered, as “Senate consideration of a nominee under these circumstances is not fair to the President, to the nominee, or to the Senate itself.” Instead he suggested that the Senate Judiciary Committee should wait to schedule nomination hearings “after the political campaign season is over.”1