This was just days after his nomination and months before Thomas’s former colleague Anita Hill accused him, without evidence, of sexual harassment. Her allegation turned his confirmation into a horrific ordeal, but Thomas was ultimately confirmed by a vote of fifty-two to forty-eight, the last time a justice was confirmed by a Senate controlled by the opposing party.65
The Reagan-Bush years taught judicial conservatives several lessons. First and foremost was the importance of controlling the Senate. Republican control was why Rehnquist won and Bork lost. Second, inadequate vetting can have disastrous results. While Kennedy’s record gave White House lawyers enough information to know what to expect from him—and they chose him anyway—the records of O’Connor and Souter did not have enough information to warrant a nomination. O’Connor simply hadn’t ruled on the types of cases she would deal with at the federal level. Souter, likewise, had been nominated after only two months on the federal bench. Finally, the Thomas battle taught them that scurrilous allegations could arise at the last minute if all other efforts to derail a nomination failed.
The Supreme Court was a major issue before the 2000 election, with liberal pundits fearing what Bush would do if elected. “Wake up, America,” Helen Thomas urged in her November 4 column, headlined: “The Supremes: They’re What the Election Is All About.” She prophesied that if George W. Bush won, an “ultraconservative majority” would dominate the Court for years. “All I can say is ‘cry the beloved country’ if Bush-appointed conservatives prevail on the high bench.”66 The Democratic nominee, Al Gore, joined her doomsday chorus, warning that Bush had promised to move the Court “to the extreme right wing.”67
Bush won, and in his two terms he appointed two justices, but Helen Thomas’s apocalyptic predictions proved inaccurate. John Roberts was first nominated to replace Sandra Day O’Connor, but when William Rehnquist died, Roberts was re-nominated for the chief justice’s seat. He was billed as a strong conservative, and his confirmation was relatively easy. But conservatives would later lament his lack of courage on the bench. His two opinions upholding the Affordable Care Act, also known as “Obamacare,” looked like desperate efforts to rewrite the law to avoid the political firestorm that overturning it might ignite.68 In the first constitutional challenge to Obamacare, which forced Americans to purchase health insurance or face a heavy penalty, he initially voted to overturn the law as outside Congress’s Commerce Clause authority. Worried that overturning a major piece of legislation would arouse public anger and that the insurance markets might be thrown into chaos, he voted to uphold the law by redefining the penalty as a tax.69 From a conservative perspective, the problem with Roberts was not that he was a liberal but that the prospect of intense controversy affected his rulings or caused him to avoid taking a strong stand, whether by voting not to hear cases on controversial issues or by going out of his way to decide them on extremely narrow grounds. For conservatives yearning for justices who would be strong under pressure, Roberts’s appointment became a cautionary tale.
Bush then nominated his longtime friend and White House counsel Harriet Miers to replace O’Connor, but she immediately drew opposition from senators and others concerned about her lack of judicial experience. Grassroots conservatives also rebelled. Miers’s character and talent had won the confidence and loyalty of the president and the admiration of many in the legal community of Texas, where she had been one of the first women to reach the highest levels of private corporate practice. But her career, however impressive, afforded little evidence of the unshakeable commitment to a principled judicial philosophy that conservatives were demanding. She withdrew within a month, and Judge Samuel Alito of the Third Circuit was nominated instead, an appointment that conservatives regard as remarkably successful.
Starting with President Eisenhower, Republicans had filled nineteen Supreme Court seats, compared with eight for Democrats. Yet the reign of liberal activism on the Supreme Court had encountered few challenges.
Scalia’s death was a crushing blow to GOP voters and the conservative legal movement, frustrated by decades of blown opportunities to secure control of the Court. And it came just as Republicans were seeking to coalesce around a presidential candidate who could beat Hillary Clinton, already the front-runner in the race.
While the stunned Don McGahn sat at a Maryland gas station trying to figure out the Trump campaign’s response to Scalia’s death, people associated with the influential Federalist Society immediately began to strategize. On law school campuses, the group of conservatives and libertarians is known for hosting debates, which are also a major feature of their national conferences. Leading lights from across the political spectrum have debated, for example, whether district courts have the authority to enter nationwide injunctions, whether the Constitution presumes a moral and religious people, whether the government’s collection of phone records violates the Fourth Amendment, and whether courts are too deferential to legislatures.
In early 2016, the Federalist Society had few connections with the Trump campaign, which was a much smaller organization than the other campaigns and was profoundly anti-establishment. McGahn was one of the few Washington insiders associated with it. The political class—the “establishment”—was downright oppositional. But then, the feeling was mutual.
When Jonathan Bunch, the director of external relations for the Federalist Society, finally spoke to McGahn before the Iowa caucuses, the conversation got off to a rocky start. The soft-spoken Bunch wanted to know about Trump’s views on judges. McGahn responded dryly that Trump had it all under control—in fact, John Sununu was handling the issue for him. The man who had given America David Souter was working on two lists—one of pragmatists with no paper trails who would be easily confirmed, and the other of people whose conservative records made them too hot to handle.
Bunch was speechless. Finally, he asked McGahn what they were going to do with the two lists. When, after a long pause, McGahn said the list of pragmatists would be thrown in the trash and the second list would be jammed through the Senate, Bunch realized that he had been joking about Sununu. McGahn told Bunch that he had been president of his Federalist Society chapter in law school. Everything would be fine. He was a judicial conservative.
Back on the road and headed to the Eastern Shore of Maryland, McGahn was expecting a call from Trump to discuss Scalia’s death. After the loss in Iowa, Trump had soundly defeated all comers in the New Hampshire primary earlier in the week. South Carolina and Nevada were next, and Super Tuesday, when eleven states would select nearly half of the delegates needed to win the Republican nomination, was two weeks away. Many Republican voters’ chief concern about Trump was that he wasn’t actually conservative. He’d been a registered Democrat a few years earlier and had previously been outspoken in his support of abortion. “I am very pro-choice,” he declared on Meet the Press in 1999. His views on judicial philosophy were largely unknown, and he hadn’t given Republican voters reason to trust him.
When Trump called, McGahn told him that he should move cautiously—extend his condolences to Maureen, Scalia’s beloved wife, and get a feel for the situation. As luck would have it, McConnell’s statement against confirming an Obama nominee dominated the news, giving the GOP presidential candidates some breathing room.