News of Kennedy’s retirement touched off a minor media maelstrom. “Abortion will be illegal in twenty states in 18 months,” CNN’s chief legal analyst, Jeffrey Toobin, tweeted.4 Other outlets entertained even crazier possibilities. The New York Times noted that Kennedy’s son worked for Deutsche Bank, the same bank that had provided the Trump organization more than one billion dollars in real estate loans.5 There was no reason to think that President Trump’s acquaintance with Kennedy’s son was nefarious, but the Times report launched all manner of conspiracy theories. Neera Tanden, the president of the influential liberal think tank Center for American Progress, tweeted, “Just to state this: Justice Kennedy’s son gave a billion dollar loan to Trump when no one would give him a dime, and Justice Kennedy has been ruling in favor of the Trump Administration position for 2 years as the Court decides 5-4 case after 5-4 case.”6 Why a Deutsche Bank loan to Trump would make Kennedy beholden to the president rather than the other way around was never explained, but Tanden’s theory was retweeted twenty-one thousand times. Both the Washington Post and Politifact eventually ran fact checks that debunked the supposed conspiracy between Kennedy and Trump.7
When Kennedy’s retirement was announced at a Democratic National Committee meeting, participants gasped and expressed concern. Because of his liberal rulings on abortion and same-sex marriage, Democrats and progressives considered Kennedy the best of the Republican-nominated justices.
But for all of their fawning over him when he reached conclusions they liked, liberals did not respect Kennedy. They turned on him immediately when he gave Trump the opportunity to name his successor, adopting some of the same criticisms conservative critics had leveled in the past. Ian Millhiser of ThinkProgress sneered, “Justice Kennedy was a Cadillac’s intellect in a Lamborghini’s job,” highlighting Lawrence v. Texas, the case that overturned anti-sodomy laws, as “an opinion that was constructed largely from discarded Age of Aquarius lyrics.” Of his opinion in Planned Parenthood v. Casey, in which Kennedy famously changed his vote to uphold Roe v. Wade, Millhiser wrote that he agreed with the outcome, but “the problem is that its hippie-dippie, decidedly unlegal language renders its rule vulnerable.”8
That same night, MSNBC’s Chris Matthews told Senate Democrats they had to do what they could to obstruct and delay the nomination past the midterms in the hope that the Democrats, a one-vote minority after winning a valuable seat from Alabama the year before, would take control of the upper house.9 McConnell had already promised that Trump’s nominee would be voted on “this fall.”10 But first there had to be a nominee.
A president’s appointments to the Supreme Court shape his legacy more than almost any other decision he makes, but each administration handles the selection of nominees in its own way. The death of Justice Antonin Scalia early in the primary season of the 2016 presidential campaign and the Republican-controlled Senate’s refusal to consider President Obama’s nomination of Judge Merrick Garland as his successor guaranteed a vacancy on the Court for the next president to fill. Hoping to reassure Republican voters who doubted his reliability to appoint a conservative, Donald Trump had released a list of possible nominees to the Supreme Court during the primary elections—an unprecedented but successful political stroke. For that first Supreme Court nomination, the list was whittled down to top contenders, who interviewed before a limited panel of key advisors. A few of those contenders interviewed with President Trump. He chose Judge Neil Gorsuch of the Court of Appeals for the Tenth Circuit, and the relatively smooth confirmation of this conservative originalist from Colorado was seen as one of the key victories of Trump’s first year in office.
The list had been expanded with five new names in November 2017 and now included Judge Amy Coney Barrett of the Seventh Circuit and Judge Brett Kavanaugh of the D.C. Circuit, the latter of whom had clerked for Justice Kennedy the same year as Gorsuch. Upon Kennedy’s retirement, Trump announced that he would again select his nominee from that list.
A weakness of the judicial selection process in recent Republican administrations has been the involvement of too many people. The inevitable rival factions in the White House and the Department of Justice knocked out one another’s top contenders and settled on consensus candidates who often proved disappointing. Trump’s Justice Department was led by Attorney General Jeff Sessions, who had recused himself from overseeing the department’s far-reaching investigation into whether Trump had colluded with Russia to steal the 2016 election. That conspiracy theory, a major distraction for the Trump administration in its first two years, was eventually debunked with the release of Special Counsel Robert Mueller’s report in April 2019. Sessions’s self-imposed inability to manage the destructive investigation damaged his relations with the White House and the Justice Department. He had played a limited role in judicial selection, as had the Office of Legislative Affairs and most other executive offices apart from the White House counsel’s office. The judicial selection and confirmation process to that point had received extremely positive press coverage and enjoyed the approval of the president’s supporters, so when Justice Kennedy retired, it was decided to keep the team that had won last time on the field.
Inside the White House, the counsel’s office had handled not only the Gorsuch nomination but dozens of other federal court nominations, and although they had no advance notice of Kennedy’s retirement, they were prepared for it. They had refreshed the list months earlier in anticipation of a Supreme Court vacancy. Deputies had constantly updated files of prospective nominees, all of whom had already been vetted. Within a day of Kennedy’s announcement, word leaked that two of his former clerks, Judge Ray Kethledge of the Sixth Circuit and Kavanaugh, were the front-runners for the open seat, while others said the top two were really Kavanaugh and Barrett.
The press soon became a problem for Kavanaugh, staking out his house and following him everywhere. At the suggestion of his colleagues on the court of appeals, including a cordial Merrick Garland, he was eventually assigned a security detail, including a car with federal marshals to drive him around.
In his twelve years on the D.C. Circuit, Judge Kavanaugh had authored more than three hundred opinions, always guided by the text and original meaning of the Constitution. He was known as a uniquely effective jurist, and the Supreme Court had adopted his reasoning in at least thirteen decisions.11
Despite his illustrious pedigree—Yale College and Law School—he was down to earth and affable. The fit, fifty-three-year-old, Irish-American Catholic with a full head of hair and a quick sense of humor was well liked by his colleagues and friends and always had been.
He was on the president’s list of potential nominees by the time rumors of Kennedy’s retirement began to circulate, but he had not been given any advance warning by the justice. Nevertheless, he had put off finalizing his family’s vacation plans until the end of the Supreme Court term, just in case. When the final session ended with no retirement announcement, he texted his wife, Ashley, to go ahead and make summer plans with their daughters, Margaret and Liza. By the time he returned from lunch, McGahn had called to tell him the news. Vacation planning would have to wait; the White House counsel wanted to interview him in his chambers on Friday.