The president-elect told the group he wanted a nominee who was young enough to serve for decades, exceptionally well qualified, not weak, and would interpret the Constitution as the framers intended.89 Further discussion revealed that Trump cared a great deal about credentials, seeking someone at the top of the legal profession. He wanted someone who would not be swayed by the political and social fashions of the day, someone who would be courageous in his decisions. The group discussed the courage and independence that had made Scalia special, and at Leo’s recommendation, Trump even called Maureen Scalia to discuss her husband.
Leo provided a list of six names who he said matched Trump’s criteria well: Colloton, Gorsuch, Hardiman, Pryor, Sykes, and Thapar.
Leo, on leave from the Federalist Society to work on the transition, conducted screening interviews with the short-listers, covering a range of topics. Some of his questions were predictable enough, the kind the judges themselves might ask a potential clerk: Who’s the best judge of your lifetime? Who was the best judge before that? What are the strongest arguments for and against textualism and originalism? He probed their judicial philosophy, asking what made their own philosophy attractive and what was the most difficult question they had struggled with on the bench. Finally, he touched on the issue of fortitude, asking them to speculate what caused so many judges to drift from their judicial philosophy and first principles.
Some talked about the “Greenhouse effect,” which was Judge Laurence Silberman’s term for the influence of the media, personified by the notoriously liberal Linda Greenhouse of the New York Times.90 Others cited the corrupting effects of power. Everyone handled the interviews well. Gorsuch described the importance of courage, recalling how his mother, Anne, had been targeted politically when she worked in Washington as the administrator of the Environmental Protection Agency under Reagan.
“The ‘not weak’ category became pretty damn clear,” Leo said.
Short-listers then met with McGahn one-on-one at Jones Day, where he gave them their “sex, drugs, and rock-and-roll” screening. They also discussed judicial philosophy. This was the first time many of them had met McGahn.
The next interview was conducted by a panel put together by McGahn. It included himself, Vice President Elect Pence, Bannon, and Priebus. He feared Priebus would try to make it a typical Republican process. He also included Pence’s counsel, Mark Paoletta, who had worked on nominations going back to Clarence Thomas.
Meanwhile Pence, McGahn, and Marc Short, the White House director of legislative affairs, headed over to Capitol Hill to talk to senators about whom they wanted to see on the Supreme Court. The list of twenty-one names had been public for months, but some Democrats said they hadn’t seen it. Senator Murkowski expressed support for Gorsuch. Many senators expressed concern about Pryor. Senator Collins pointed out that she had voted against Pryor when he was confirmed to the court of appeals in 2005 because he had once described Roe v. Wade as the “worst abomination in the history of constitutional law.” She would be unlikely to change her vote if he were nominated to an even higher court.
While Kethledge, who had become a short-lister, had an extremely successful interview and the enthusiastic support of the vice president elect, he had a shorter and less illuminating paper trail than several of the others. Pryor hit it out of the park in his interview, but there were concerns that he might not pass through the Senate, which still had a filibuster rule enabling the minority party to kill a nomination with only forty votes. Hardiman also had a strong interview and less opposition. Sykes’s interview was satisfactory.
Pence showed each candidate a graph from the New York Times showing the ideological slide justices took after confirmation—almost always to the left. It’s a trend that conservatives regularly bemoan. One conservative justice said newcomers to the court have to be prepared to stand up against the American Bar Association, business groups, and the liberal media. They have to be prepared to be disliked and to accept that nasty and unfair things will be said about them. And they have to be confident in their ability to analyze cases and not be influenced by liberal law clerks.
Pence asked candidates to explain the drift, and he received a range of answers: the influence of liberal media, Washington elites, their peers. Each candidate was asked whom he or she would pick if he or she were not chosen. Everyone picked Gorsuch. Kethledge strongly advocated for him, and Pryor discussed a criminal law decision Gorsuch wrote that helped him understand a key issue. Gorsuch was the only one who didn’t name his choice, but he declined for a compelling reason. He praised them all but said he couldn’t make a decision until he read each candidate’s complete record. His judicial colleagues’ answers gave the vetting team further comfort about Gorsuch.
The short-listed candidates next met with the vice president elect. Of those, Pryor, Hardiman, and Gorsuch were interviewed, in that order, by the president-elect in the presence of McGahn at Trump Tower in January. They were the best of show in three categories. Pryor was the best conservative darling, Hardiman was the best representative of the Trump voter, and Gorsuch was the best with the typical elite résumé.
McGahn prepped Trump before the interviews, explaining to the businessman the need to be careful to not say anything that could be construed as a request for a commitment to rule in a certain way on any issue, for senators would ask the nominee if such a commitment had been requested. Trump was impressed by all the candidates, but Gorsuch ended the day as he began it—as the front-runner.
While many people participated in the selection process, Leo and McGahn felt strongly that it needed to be the president’s decision. After Trump chose Gorsuch, the confirmation process ran like clockwork, culminating in his confirmation on the target date of April 7, which McGahn had set back in December, before Trump even took office.
Two months later, Leo and McGahn talked to the president about refreshing the list. They mentioned Kavanaugh’s name again. Clement, the other popular D.C. figure left off the first lists, was also discussed. But as Clement had never been a judge—and reportedly wasn’t interested in a lower-court position—he had no demonstrable record of how he would perform on the bench.
It was a tumultuous summer at the White House. Priebus was fired as chief of staff and there were riots in Charlottesville. Leo and Trump met for dinner in September and talked more about judicial confirmations. An updated list was assembled in October and early November, and released on November 17 in the middle of the Federalist Society’s annual lawyers’ convention in D.C. The list now included four newly confirmed judges: Amy Coney Barrett of Indiana, Kevin Newsom of Alabama, Britt Grant of Georgia, and Patrick Wyrick of Oklahoma. And—raising the eyebrows of everyone who knew what his inclusion signaled—Brett Kavanaugh.
CHAPTER THREE
Complicit in Evil
“These things are won or lost in the first forty-eight hours,” Kavanaugh would always tell his students when he taught about judicial confirmations in his Supreme Court and Separation of Powers class. He had learned this from reading the history of confirmation battles, but also from his experience at the White House. President George W. Bush announced his nomination of John Roberts to the Supreme Court in a prime-time televised address, making a compelling case for the judge’s qualifications. Democratic senators said they’d keep an open mind. The harshest criticism in the wake of the announcement was an attack in the Washington Post on the seersucker suit worn by Roberts’s young son, a tasteless jab that simply increased sympathy for the Roberts family.1 He was confirmed by a vote of seventy-eight to twenty-two.