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

by Mollie Hemingway

  The second serious challenge Gorsuch faced was the filibuster. Even the left-leaning American Bar Association rated him well qualified; he was well regarded by his peers and he had emerged from his hearings unscathed. Yet he still couldn’t get sixty votes for cloture from the bitterly divided Senate. Egged on by a resistance still outraged by Trump’s election, the Democrats mustered forty-five votes to filibuster Gorsuch, the first time in history a partisan filibuster had been used to block a Supreme Court nominee with majority support.

  The Republicans couldn’t believe their luck. By filibustering Gorsuch, the Democrats had overplayed their hand. Republicans knew that they could never confirm the kind of judges on Trump’s list with a filibuster in place. McConnell could now tell his members that if a Republican-nominated justice as exceptional as Gorsuch couldn’t get sixty votes, nobody could. And it was untenable to leave a Supreme Court seat open indefinitely because of Democratic intransigence. McConnell reminded his colleagues that filibustering a nominee was itself a recent innovation and that removing the filibuster for Supreme Court justices would simply finish the job the Democrats had started in 2013. Besides, if Democrats regained control of the Senate, wouldn’t they end the Supreme Court filibuster without a second thought to get their own nominee confirmed? So with the bare majority of fifty-one votes required to change the Senate rules, the filibuster was eliminated.

  Getting the votes to eliminate the filibuster wasn’t easy. Many moderate senators, including former members of the Gang of Fourteen, wanted to keep it, as did many conservatives led in the Senate by Mike Lee and outside by Heritage alums Ed Corrigan and James Wallner. Even though McConnell suspected early on that the filibuster would have to be eliminated to get Gorsuch on the Court, he never said so. He simply told reporters that he was confident Gorsuch would be confirmed. Had he talked about the filibuster before Democrats had shown themselves to be unwilling to confirm a nominee like Gorsuch, his own moderate senators might have dug in. Waiting to discuss the question also enabled Republicans to see how hard McConnell was fighting to get to sixty votes in the traditional way.

  Gorsuch was confirmed on April 7, 2017. Despite the bloodless filibuster mounted by Democrats, the drama had been kept to a minimum—no mean feat, considering the turmoil that engulfed the Trump White House in that first year. The success of the Gorsuch nomination, hailed as one of the administration’s most impressive victories, laid the groundwork for the initial success of Kavanaugh’s confirmation battle.

  Senator Schumer’s decision to filibuster Gorsuch is now widely recognized as a serious political miscalculation, as it allowed Republicans to eliminate the filibuster with a minimum of effort. Still, the pressure from the Democratic base to put up a strong show of resistance was overwhelming. Bill Scher made the case for the filibuster in Politico: “No matter what Democrats do, Gorsuch is almost sure to get confirmed. But how Democrats lose is important. They need to keep their base energized. They need to protect vulnerable senators. They need [to] maintain party unity.”52

  As later events would show, it would have been wiser to save the move for the second Supreme Court nomination, when it almost certainly would have succeeded. Not having to obtain a filibuster-proof majority was essential if Kavanaugh was to have any hope of confirmation.

  CHAPTER FOUR

  Mootings, Meetings, and Mobs

  Fifty-four votes.

  On their way to the first round of meetings with senators, Don McGahn told Kavanaugh that it didn’t matter if he was the best person or most beloved judge ever—he probably wasn’t going to get more than fifty-four votes. When McGahn administered the same reality check to Gorsuch a year earlier, the nominee was taken aback. He had hoped for the backing of as many as seventy-five senators. (In the end, only fifty-four supported him.) Kavanaugh, on the other hand, had already been through one heavily politicized Senate confirmation, and he was keeping his expectations in check.

  Kavanaugh’s White House experience made him more realistic about the political process than many other nominees. Partisan votes were part of the ugliness of American politics, but the political environment at the time of his nomination was particularly challenging. Almost any Democrat who voted for him could expect that if a Justice Kavanaugh later angered the Democratic base in an important case, he might well face a primary challenge from the left and lose his Senate seat.

  The ceiling for votes may have been fifty-four—all the Republican senators plus three vulnerable moderate Democrats—but the confirmation team also understood that their floor was below fifty. Republicans Lisa Murkowski and Susan Collins were targeted not only by Kavanaugh’s team but by progressives.

  Getting those votes lined up began right away with one-on-one meetings with as many senators as possible. Kavanaugh’s first meetings were with Grassley and McConnell the morning after the White House announcement. He and Ashley had stayed up talking until five in the morning, leaving him slightly punchy. He could easily talk at length under normal circumstances, but the lack of sleep made him especially wordy. When they left the meeting with Grassley, McGahn teased him, saying he could tighten up his answers for subsequent meetings. “They don’t need to hear all that,” he advised.

  Each meeting was different. Senator Lindsey Graham offered advice, explained the process, and tested him on tough questions he might face during his hearings. Senator Ted Cruz acted out the antics he felt Kavanaugh should be prepared for from Democrats, at one point shouting “Treason!” in a booming theatrical voice so loud it echoed down the hallway. A two-hour meeting with Senator Mike Lee about Kavanaugh’s approach to originalism provided a preview of Lee’s questions in the hearings. These meetings with friendly senators allowed him to address concerns that might be raised in his hearings and to learn about the particular legal interests of the people whose votes he had to earn.

  Kavanaugh would have to address Senator Rand Paul’s concern that he was too deferential to the government in Fourth Amendment cases, which deal with the question of unreasonable searches and seizures. Concurring in 2015 with an opinion of his court that affirmed the National Security Agency’s right to collect telephone metadata without a warrant, Kavanaugh wrote that the collection of such data is a “critical national security need” that is “entirely consistent with the Fourth Amendment” and outweighs privacy concerns. Now he attempted to show Senator Paul that he had not ruled for the government in every Fourth Amendment case. In fact, he had developed the constitutional rationale that Justice Scalia adopted in United States v Jones rejecting the use of GPS tracking by the police.1 Kavanaugh also emphasized his work on the separation of powers, which dovetailed nicely with Paul’s concerns on the overgrowth of a constitutionally suspect regulatory state. Paul was not entirely convinced on the Fourth Amendment question, but he recognized that Kavanaugh was on the whole a good pick. He had his vote.

  Early in the process, Kavanaugh’s team was not worried about Senator Jeff Flake, but he was one of a few senators, along with his fellow Arizonan John McCain and Robert Corker of Tennessee, whom the White House was worried about because of their antipathy to President Trump. Corker addressed the question head-on, asking why he should reject a good Supreme Court nominee just because he didn’t like the president. He viewed Kavanaugh’s qualifications and his own feelings about Trump as unconnected.

  The meeting with Flake went well and offered Kavanaugh a preview of the questions Flake would ask at the hearings about Trump’s use of executive power. But unlike most of his Republican colleagues, Flake declined to meet with the press immediately after their visit. Favorable comments from Republican senators before or after their meetings with the nominee were an important part of the public relations effort, but Flake’s office would not play along, to the annoyance of the White House. Jon Kyl, Flake’s immediate predecessor in his Senate seat, elegantly solved the problem. Acting as Kavanaugh’s guide—the D.C. slang for the role is “sherpa,” after the Himalayan natives who help climbers scale Mount Eve
rest—he attended many of the senatorial meetings alongside the prospective justice. As Kavanaugh’s team left the meeting with Flake, members of the press were gathered outside. Kyl walked right up to them to tell them what a productive meeting Kavanaugh had had with the senator. Not to be outdone in front of the cameras, Flake came out of his office and joined the gaggle as well.

  Senator Rob Portman of Ohio not only met with Kavanaugh but also gave him advice. The two men had worked together when Portman was the U.S. trade representative in the Bush administration. Portman acted as another ear to the ground in the Senate, helping Kavanaugh think about how to handle certain meetings and how to manage the hearings. In a sea of loud-mouth senators, Portman and Kyl were among the most effective, quietly and effectively lobbying their colleagues and addressing their concerns.

  The most important meeting would be with Susan Collins. The White House had solicited her opinion about whom to nominate, and both sides had targeted her as soon as Justice Kennedy announced his retirement. Progressive groups started a full-court press on June 29, before Kavanaugh’s nomination, sending hangers—supposedly the implement of choice in the days of illegal abortion—to her offices in Washington and Maine as a sign of their vigilance in defense of Roe v Wade. At the rally outside the Supreme Court the night of Kavanaugh’s nomination, protesters warned, “Susan Collins, we are watching you!” It was the wrong approach to take with Collins, who bristles at bullying and who is known for her even-tempered, thoughtful, and reasonable approach to contentious issues.

  She had prepared meticulously for her meeting with Judge Merrick Garland in 2016, even as her Republican colleagues made sure his nomination went nowhere, and she did the same now. By far the most prepared of all the senators for her meeting with the nominee, Collins posed detailed questions about his opinions, right down to the footnotes.

  Not a member of the Judiciary Committee, Collins did not have staff dedicated to judicial nominations. Her able judiciary aide, Katie Brown, also handled civil rights, education, and a host of other issues. Knowing she would need outside assistance, Collins brought in three accomplished attorneys who had previously worked for her and fifteen attorneys from the non-partisan Congressional Research Service to assist her staff in reading through Kavanaugh’s hundreds of opinions, law review articles, and speeches. The team prepared summaries organized by topic in binders with supporting documents. Poring over these materials, Collins requested additional analysis, discovering that Kavanaugh and Garland voted the same way in 93 percent of the cases that they heard together. In fact, Garland dissented only once from a majority opinion authored by Kavanaugh.

  In a discussion with a prominent attorney concerned about Kavanaugh’s dissent in an abortion rights case, Collins, who had read his footnotes, realized that she understood Kavanaugh’s work better than many of his critics. She might not agree with all of his decisions, but she wanted to ensure he had a proper respect for precedent and that he was in the mainstream of legal thought.

  Kavanaugh knew that Senator Collins’s vote was decisive, and he prepared as if it were the final exam of his life. The meeting had run two hours and fifteen minutes when a bell rang announcing a vote. The longest-serving current member of the Senate never to have missed a roll-call vote, Collins was constrained to end the meeting. The judge offered to meet with her again, to the dismay of his attendants, who were relieved to have that meeting behind them. They arranged a follow-up phone call for after the hearing. Kavanaugh’s team sensed he had done well. He had. The senator was coming to the conclusion that he was incredibly intelligent and thoughtful, had been misrepresented by his critics, and would be an extraordinary justice.

  After the meeting, she reported that Kavanaugh had told her he agreed with Chief Justice Roberts that Roe v Wade was “settled law.” Dismayed social conservatives wondered why he would say that about the controversial decision. Yet the judge had been careful to say nothing in private meetings that would contradict what he said to other senators or that he couldn’t say at his public hearings. He had told Senator Collins that he agreed with Chief Justice Roberts’s comments in his own confirmation hearings, but the Delphic formulation “settled law” had tipped neither Roberts’s hand nor Kavanaugh’s. After all, no jurist believes that stare decisis requires every prior decision to be left in place. In striking down racial segregation2 and anti-sodomy laws,3 the Court overturned precedent, just as it did when it overturned campaign finance regulations4 and blocked unions from forcing non-members to pay dues.5 Acknowledging that a case is “settled law” is merely descriptive and doesn’t indicate whether a judge would overturn it if given the opportunity.

  On the second day of John Roberts’s hearings in 2005, the chairman of the Senate Judiciary Committee, Arlen Specter, had grilled him on whether he would overturn Roe v Wade. Roberts responded that he would follow the precedent of previous nominees and not discuss particular cases, adding that previous decisions should be overturned only on the basis of the law, not mere disagreement with the outcome. Still, he showed high deference to prior legal decisions:

  I do think that it is a jolt to the legal system when you overrule a precedent. Precedent plays an important role in promoting stability and evenhandedness. It is not enough—and the Court has emphasized this on several occasions—it is not enough that you may think the prior decision was wrongly decided. That really doesn’t answer the question. It just poses the question. And you do look at these other factors, like settled expectations, like the legitimacy of the Court, like whether a particular precedent is workable or not, whether a precedent has been eroded by subsequent developments. All of those factors go into the determination of whether to revisit a precedent under the principles of stare decisis.

  Roberts also said that a judge must not say whether he will or will not overrule a given decision.

  Kavanaugh’s meeting with Senator Tim Scott of South Carolina, the only black Republican in the Senate, focused on race. Immediately before they met, Scott had voiced a dramatic last-minute objection to the appointment of Ryan Bounds to a federal appeals court because of racially insensitive writings from college. Knowing the senator’s concern, Kavanaugh told Scott about his law review note—a capstone article that each student member of a law review gets to publish on a topic of his choice—on eliminating racial discrimination in jury selections. He explained that his concern about racial inequality stemmed from his mother’s work in inner-city schools. Scott was favorably impressed with how much time he had devoted to the issue.

  While Kavanaugh met with senators, the Center for Popular Democracy, having brought some six hundred protesters to Washington, staged a demonstration in and around the Capitol. On August 1, following the group’s rally, seventy-four protesters were arrested when they tried to block the Senate hallways to prevent the meetings with Kavanaugh from taking place.6

  After weeks of refusing to speak with Kavanaugh, the Democratic leadership relented, agreeing on August 3 to meet with him later in the month, in the last two and a half weeks before the hearings. The minority leader, Chuck Schumer, and the ranking Democrat on the Judiciary Committee, Dianne Feinstein, had imposed the boycott to force the release of not only all the papers Kavanaugh had seen while serving in the Bush administration but every one of the millions of documents produced by the Bush White House while he served as staff secretary. By contrast, Mitch McConnell had met with Elena Kagan on her first day on Capitol Hill, two days after she was nominated, before her paperwork had even been processed.

  Senator Joe Manchin, who was running for reelection in Trump-friendly West Virginia, had already broken the Democratic boycott, meeting with Kavanaugh on July 30. After a chat about sports and their shared background in Catholic schools, Manchin wanted to talk about Obamacare. When Kavanaugh, predictably, declined to go into specifics, they instead discussed his approach to “severability,” a sometimes-arcane concept that figured in several legal challenges to Obamacare. Kavanaugh was also able to go over his reco
rd with Manchin, rebutting the misguided charge that he always favored corporate interests. His rulings in favor of both workers and corporations attested to his fidelity to the principle that the law, not a judge’s policy preferences, should determine his decisions. Immediately after their meeting, Manchin went to see Schumer in person, which the White House viewed as an excellent sign that he planned to break with his partisans and vote for Kavanaugh. Good news can be shared over the phone, but bad news has to be shared in person, they surmised.

  Claire McCaskill of Missouri, also on the short list of Democrats who were in play, told Kavanaugh that while everybody expressed confidence she’d do the right thing politically, she wished someone would tell her what the right thing was. She was in a difficult reelection battle in a state that Trump had carried by an eighteen-point margin.7 But she had voted against Gorsuch and was prepared to vote against Kavanaugh, citing her objections to the Citizens United decision. Kavanaugh, an equal-opportunity supporter of the First Amendment, had anticipated the Supreme Court’s reasoning in Citizens United in his own opinion in Emily’s List v Federal Election Commission, ruling that the abortion advocacy group had a right to raise and spend money to promote the candidates or policies of its choice.8 McCaskill was open about her growing unease with the Senate, finding it an unpleasant place to work in part because of the decline of centrists. She attributed this polarization to the flood of special-interest money into campaign coffers. Indeed, her own campaign had received $1.6 million from Emily’s List alone, including over half a million dollars in that very cycle.9

  A meeting with Senator Sheldon Whitehouse of Rhode Island was unproductive, but Feinstein couldn’t have been friendlier. Meetings with Cory Booker of New Jersey, Kamala Harris of California, and Amy Klobuchar of Minnesota went well. All allowed the judge to preview some of the issues they would address during the hearings, ranging from race to antitrust law. Still, these meetings were very different from those with Republicans. Cory Booker, appearing at a press conference with other potential presidential candidates, had depicted Kavanaugh’s confirmation as a question of good versus evil. There were no bystanders, he said, descending into the most offensive hyperbole: “You are either complicit in the evil, you are either contributing to the wrong, or you are fighting against it.”10