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 Everest—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.