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

by Mollie Hemingway

  Kyl was occasionally unable to attend Kavanaugh’s meetings with senators, but McGahn was in every one, an irenic presence amid the partisan tension. He knew most senators from campaigns he’d helped them with or from seeking their advice on judicial nominations.

  “Of all the White House Counsels going back to 1981, I don’t think there’s been one that made judicial selection a more central part of his daily business than Don McGahn,” observes Leonard Leo. “And there certainly has not been one who engaged in more direct shuttle diplomacy with Capitol Hill on behalf of individual nominees. Don knew the transformation of the federal judiciary was a top priority of President Trump’s, and he got right down to business.”

  McGahn was also savvy about dangerous situations. On a heavily scheduled August day, the team got split up in the underground tunnels of the Senate office buildings on the way to a meeting with Patrick Leahy of Vermont, who had already denounced the nomination in a column in the New York Times.11 Kyl and McGahn arrived at Leahy’s office to find Kavanaugh already there with the harrumphing seventy-eight-year-old senator. Leahy announced that he wanted to meet with Kavanaugh alone. Kyl got up to leave despite the team’s firm policy of no one-on-one meetings with hostile senators, but McGahn protested. After Senator Blumenthal’s twisting of Neil Gorsuch’s words from their pre-confirmation meeting, he did not want the same thing to happen to Kavanaugh. He had no option but to leave, but he was thankful nothing bad came out of the private meeting.

  Arranging personal visits with the men and women who would vote on Kavanaugh was the easy part of the confirmation effort. His background in the Whitewater investigation and his tenure in the White House, especially as staff secretary, however, produced an enormous logistical challenge. Before Kavanaugh’s nomination, McConnell had fretted about the staggering amount of paperwork senators would have to sift through to evaluate him. His legal opinions, emails and memos, and the papers that simply crossed his desk in the White House might amount to some seven million pages.

  Kavanaugh’s paper trail was vastly larger than any previous nominee’s, and paperwork had been a point of contention in previous confirmation fights. In fact, William Rehnquist’s nomination as chief justice hit a major speed bump when President Reagan refused to release to the Senate just a few sensitive documents Rehnquist had written fifteen years earlier. There were about 70,000 pages relating to John Roberts’s time in the Justice Department and the Reagan White House and about 182,000 pages for Gorsuch. Elena Kagan was trailed by 173,000 pages from the Clinton White House. At the time of her hearings in 2010, many observers weren’t sure that her documents could be handled in such a short period. In fact, the Obama White House had the same concern and had begun requesting her documents from archivists before she had been officially nominated.

  Kagan had no experience as a judge, and her published writings were not extensive. In fact, she had barely any litigation experience before becoming the U.S. solicitor general, so documents from that phase of her career were considered particularly revealing of her thinking. At the same time, since the papers reflected the deliberative discussions between the government and its attorney, they could not be handed over indiscriminately. So while the bipartisan agreement about which documents to request included records from her time at the Clinton White House, the Senate did not even request documents from her time as solicitor general.

  White House documents requested by the Judiciary Committee for Kagan’s confirmation had to go through two presidential reviews. After they were located and pulled, they were analyzed to determine whether there might be legal restrictions on their publication. They were then subject to claims of executive privilege by former President Clinton as well as by President Obama, since some of the documents might involve ongoing national security or other concerns. The paperwork battle heated up, with some Republicans threatening to boycott the hearings if they didn’t get Kagan’s papers before they started. In the end, most of the documents were released by the deadline, a few thousand of them marked “committee confidential,” which meant only the committee could review them.

  This was the same process followed for Kavanaugh. By 2018 the Senate was moving toward greater transparency in its document releases. Chairman Grassley in particular was known as the Senate’s “chief transparency officer.” While he and his staff had worried about the number of documents Kavanaugh’s nomination would produce, once he was chosen, they set about getting the work done.

  The documents from Kavanaugh’s time on the independent counsel investigation of President Clinton were the first to be produced. Scholars and journalists had already scrutinized them, and they showed Kavanaugh to have been by and large a voice of restraint in the investigation. According to Stephen Bates, the associate independent counsel who helped draft the Starr Report, Kavanaugh had urged the independent counsel “to excise the factual summary from the report, on the ground that it was excessively explicit.” Bates also reveals that Kavanaugh drafted a letter for Kenneth Starr’s signature urging the House not to release the report to the public, although “after hearing the arguments on both sides, Ken decided against sending the letter.”12

  Grassley’s staff sought Senator Feinstein’s help in narrowing the scope of the request for documents, especially those from his time as staff secretary. “A review of all the paperwork that circulated through Kavanaugh’s office when he was staff secretary would pretty much amount to a review of all the paperwork that circulated through the White House in those years, and yet would also reveal essentially nothing about Kavanaugh. It would mostly amount to a monumental waste of the Senate’s time,” wrote Yuval Levin, a domestic policy adviser in the Bush White House.13

  Staff secretary is not a legal position. A law degree is not a requirement, though it is commonly held by lawyers. The documents from that office would involve trivial matters such as whether flags should be flying at half-staff, menus, and Arbor Day speeches, as well as sensitive national security matters.

  One reason Kavanaugh had so many more documents to review than everybody else was that his tenure as staff secretary corresponded with the advent of email and the convenience of Blackberry phones. Water-cooler conversations about where to grab lunch were now handled in texts and emails that became historical records. Documents from the White House counsel’s office had to be turned over even though they often included legal advice, since such documents had been submitted for Kagan’s confirmation.

  In any case, chasing down millions of White House documents was an almost pointless exercise considering that the senators—indeed, anyone with an internet connection—had ready access to the most important evidence of Kavanaugh’s thinking: his judicial record. In twelve years on the D.C. Circuit, Kavanaugh had authored 307 opinions and joined hundreds more. And the judicial questionnaire he answered for the Senate Judiciary Committee was the most extensive in history, stretching to 6,168 pages.14 By contrast, Kagan had no judicial opinions to her name, and John Roberts had fifty-two.15 Gorsuch, whose tenure on the bench was of a length comparable to Kavanaugh’s, had 240.16

  Grassley spent weeks trying to work with Democrats on the process for handling Kavanaugh’s unwieldy paperwork, even though many of them had announced their opposition to the nominee from the beginning. He proposed making use of the electronic nature of the documents to allow keyword searches, but after Democrats refused to discuss reasonable ways to pare down the universe of documents, Republicans abandoned the keyword negotiations, convinced that Democrats were simply on a “government-funded fishing expedition.”17

  Democratic recalcitrance ended up saving the nomination. Had they requested a large but defensible set of documents, the hearings could have been delayed for months. In fact, Feinstein had brokered such an agreement with Grassley, only to have her staff, with whom she was frequently at odds, back away from it. She was both more moderate politically than her staff and less inclined to blow up bridges with senators with whom she had long-standing relationships.
Receiving no reasonable proposal from the Democrats, Grassley ended up requesting a manageable set of documents on his own. His obvious efforts to work with Feinstein had impressed Collins and Murkowski, who found Democratic obstruction outrageous.

  The Senate Judiciary Committee decided to hire an “e-discovery firm,” marking the first time such techniques would be used in a Supreme Court confirmation process. The contractor they had in mind was already handling e-discovery for the Bush Presidential Library as it vetted Kavanaugh-related papers for release, so it could seamlessly share those documents with the Judiciary Committee. After committee Republicans got Senate approval for the contract, they notified the Democrats, and the company suddenly pulled out of the deal. The committee contracted with the e-discovery firm Relativity instead, this time opting not to let Democrats know beforehand.

  Bill Burck, a former special counsel and deputy counsel to President George W. Bush, was Bush’s designated representative to review his records under the Presidential Records Act. Grassley’s team was on the phone with him several times a day. As soon as Burck and his team cleared each tranche of documents, they would be released. Documents were released on a rolling basis, whether they arrived at two a.m. on a Saturday or in the middle of the week.

  Grassley put together a team of dozens to go through the documents. Working out of a windowless, rat-infested, cinder-block suite in the basement of the Dirksen Senate Office Building that they called “the dungeon,” the team of attorneys and law clerks pored over the paperwork. They looked for anything politically sensitive, and categorized them according to topic areas, such as detention, guns, abortion, executive power, and torture.

  The staff were extremely proud of the innovative way they handled the paperwork, rapidly navigating arcane Senate contracting procedures and securing the manpower necessary to get through the many documents. But the Republicans’ focus on the mundane topic of document retrieval was also strategic. The goal, says Garrett Ventry, a communications strategist hired by the Judiciary Committee, was to “make it really, really boring, where the public wouldn’t care and their base would be deflated because they were fighting us over whether or not they had documents to review.” Fighting about documents meant they were not talking about Roe v Wade or Judge Alex Kozinski.

  Chuck Schumer unwittingly helped Grassley’s office keep the focus on documents when he held a press conference on July 31. Joined by his Senate colleagues Dick Durbin and Dianne Feinstein and by assorted leaders of left-wing activist groups, he posed with a small pile of empty boxes labeled “missing records” and said he’d like to see them filled with Kavanaugh’s papers from his time as staff secretary. “I want to make clear, for just a sec, how aggressive the obstruction is,” he said.18

  A few days later, Republicans on the Senate Judiciary Committee posed with a striking backdrop of 167 boxes representing the hundreds of thousands of pages that were being made available to the committee. In fact, they had been provided in digital form, which allowed for even easier searching and review.19 “If you were to stack up all these pages, it would be taller than the Big Ben, taller than the Statue of Liberty, taller than the Capitol dome, and taller than the Taj Mahal,” noted Senator Thom Tillis of North Carolina. “I think it’s more than enough for the Democrats to make a rational decision about supporting Judge Kavanaugh.”

  Grassley reminded the press that Democrats were already on record opposing the judge, suggesting that their document requests were more about delaying the nomination than learning about the nominee.

  The media’s focus on transparency and the thorough nature of the document review reflected the Judiciary Committee’s diligence in dropping a press release every time a new batch of documents was made available. New subject lines continually appeared in reporters’ inboxes: “New Batch of Kavanaugh Records Becomes Public,” “Committee Releases Third Batch of Kavanaugh Records,” “Committee Receives New Production of Kavanaugh Records,” “Committee Releases Additional Kavanaugh Records,” “Historic Transparency: Volume of Kavanaugh’s Public Exec Branch Material Tops Levels of Past SCOTUS Nominees.”

  Continuing to play into the Republicans’ hands, Schumer on August 20 called on Grassley to allow all senators to see the “committee confidential” documents, a label he called “bogus.”20 Grassley responded with a tweet reminding Schumer that even the confidential documents were already available to all senators “any day (& nite) incl wknds” and asking if Schumer’s request meant that he was backing away from his “pre-determined” vote against Kavanaugh.21

  By the time the hearings came around, conservatives and other interest groups were fully on board with Kavanaugh. The Office of Public Liaison’s Justin Clark had produced sophisticated messaging tailored for farmers, business groups, gun-rights groups, and social conservatives. Kavanaugh’s record had something to please every interest group. Even the social conservatives’ initial preference for Amy Barrett now served the purpose of making Kavanaugh look more moderate.

  To prepare for the hearings, the White House team ran Kavanaugh through several “moots,” or mock hearings, similar to a lawyer’s preparation for oral arguments. The Department of Justice had given him binders covering various topics, including major Supreme Court cases and his own opinions. His meetings with senators were interspersed with initial preparation sessions, avoiding excessive cramming just before the hearings and contributing to his conversations with the lawmakers. It still made for long days, but when the team asked if he wanted a break to eat, perhaps hoping for a snack themselves, he would generally decline, preferring to push through.

  In the full-blown moots that followed, the team, taking on the roles of senators, peppered him with questions about his cases and hot-button issues. Actual senators participated in one moot, but the questioners were usually administration staff, academics, or former Kavanaugh clerks. His more liberal clerks were particularly helpful in anticipating how senators from across the political spectrum—including the all-important Susan Collins—would view his responses. Some non-lawyers were invited to see how his answers would play with the public watching at home. They even prepared for protesters by having younger White House staffers sit in on the moots and spontaneously erupt with rage. Ashley and the girls left for a friend’s house on Martha’s Vineyard to escape the stress and the stalking press in D.C and to allow Kavanaugh to focus on his preparation.

  The hearings were scheduled to begin the day after Labor Day, Tuesday, September 4, and to continue through Friday, a duration that was typical of recent Supreme Court confirmation hearings. But little else about Kavanaugh’s hearings would be typical. Apparently worried that his path to confirmation was secure, the Democrats considered staging a mass walkout or not showing up.22 Fearing that such an action might backfire, however, they came up with a different plan: disruption.

  On Tuesday, the hearing room in the Dirksen Senate Office Building was packed as senators arrived. Dozens of photographers positioned themselves in the pit between the dais where the senators sat and the table from which Kavanaugh would face them. All the seats for visitors and the press were filled. The atmosphere was tense. Women in red robes and white bonnets lined the walkways from the elevators to the hearing room, their costumes intended to evoke The Handmaid’s Tale, the dystopian novel and television series about women being forced to bear children. On the other floors, groups from the NAACP and NARAL wore shirts of various colors and lined the walkways, forming a rainbow of protesters. One man was dressed as a giant condom.

  Kavanaugh walked in with his two daughters and wife, greeting each senator individually. Light chatter and the loud shutters of cameras filled the room. Senator Grassley shook hands with Senator Feinstein, seated to his left, and chatted with her briefly. Then he slowly gaveled the room to order: “Good morning, I welcome everyone to this confirmation hearing on the nomination—”23

  “Mr. Chairman! Mr. Chairman!” interrupted Senator Kamala Harris. “Mr. Chairman, I’d like to be recognized
for a question before we proceed!” She said there had not been enough time to review the documents. A large tranche of forty-two thousand new documents had been released just the day before.

  “You’re out of order. I’ll proceed. I extend a very warm welcome to Judge Kavanaugh, to his wife, Ashley, their two daughters—”

  Each time Grassley opened his mouth, a new objection was raised.

  “Mr. Chairman, I agree with my colleague Senator Harris,” said Senator Mazie Hirono of Hawaii, calling for a postponement of the hearing.

  “Mr. Chairman, if we cannot be recognized, I move to adjourn,” said Senator Blumenthal as protesters erupted in cheers. He called the hearing a charade and mockery, as organized protesters shouted that it was a “travesty of justice.”

  Protesters shrieked and were arrested, a pattern that would continue throughout the hearings. Several of the seats made available to the public by senators were continually filled with new protesters, who were arrested after outbursts.

  Senator Booker also began complaining about documents, as Grassley calmly told him he was out of order. “What is the rush? What are we trying to hide?” Booker asked. More protesters cheered him on. “I appeal to be recognized on your sense of decency and integrity,” Booker said, alluding to Grassley’s well-known gravitas and fairness. Hirono interrupted Booker’s interruption.

  “You spoke about my decency and integrity, and I think you’re taking advantage of my decency and integrity,” replied Grassley.