On the second day of John Roberts’s hearings in 2005, the chairman of the Senate Judiciary Committee, Arlen Specter, had grilled him on whether he would overturn Roe v Wade. Roberts responded that he would follow the precedent of previous nominees and not discuss particular cases, adding that previous decisions should be overturned only on the basis of the law, not mere disagreement with the outcome. Still, he showed high deference to prior legal decisions:
I do think that it is a jolt to the legal system when you overrule a precedent. Precedent plays an important role in promoting stability and evenhandedness. It is not enough—and the Court has emphasized this on several occasions—it is not enough that you may think the prior decision was wrongly decided. That really doesn’t answer the question. It just poses the question. And you do look at these other factors, like settled expectations, like the legitimacy of the Court, like whether a particular precedent is workable or not, whether a precedent has been eroded by subsequent developments. All of those factors go into the determination of whether to revisit a precedent under the principles of stare decisis.
Roberts also said that a judge must not say whether he will or will not overrule a given decision.
Kavanaugh’s meeting with Senator Tim Scott of South Carolina, the only black Republican in the Senate, focused on race. Immediately before they met, Scott had voiced a dramatic last-minute objection to the appointment of Ryan Bounds to a federal appeals court because of racially insensitive writings from college. Knowing the senator’s concern, Kavanaugh told Scott about his law review note—a capstone article that each student member of a law review gets to publish on a topic of his choice—on eliminating racial discrimination in jury selections. He explained that his concern about racial inequality stemmed from his mother’s work in inner-city schools. Scott was favorably impressed with how much time he had devoted to the issue.
While Kavanaugh met with senators, the Center for Popular Democracy, having brought some six hundred protesters to Washington, staged a demonstration in and around the Capitol. On August 1, following the group’s rally, seventy-four protesters were arrested when they tried to block the Senate hallways to prevent the meetings with Kavanaugh from taking place.6
After weeks of refusing to speak with Kavanaugh, the Democratic leadership relented, agreeing on August 3 to meet with him later in the month, in the last two and a half weeks before the hearings. The minority leader, Chuck Schumer, and the ranking Democrat on the Judiciary Committee, Dianne Feinstein, had imposed the boycott to force the release of not only all the papers Kavanaugh had seen while serving in the Bush administration but every one of the millions of documents produced by the Bush White House while he served as staff secretary. By contrast, Mitch McConnell had met with Elena Kagan on her first day on Capitol Hill, two days after she was nominated, before her paperwork had even been processed.
Senator Joe Manchin, who was running for reelection in Trump-friendly West Virginia, had already broken the Democratic boycott, meeting with Kavanaugh on July 30. After a chat about sports and their shared background in Catholic schools, Manchin wanted to talk about Obamacare. When Kavanaugh, predictably, declined to go into specifics, they instead discussed his approach to “severability,” a sometimes-arcane concept that figured in several legal challenges to Obamacare. Kavanaugh was also able to go over his record with Manchin, rebutting the misguided charge that he always favored corporate interests. His rulings in favor of both workers and corporations attested to his fidelity to the principle that the law, not a judge’s policy preferences, should determine his decisions. Immediately after their meeting, Manchin went to see Schumer in person, which the White House viewed as an excellent sign that he planned to break with his partisans and vote for Kavanaugh. Good news can be shared over the phone, but bad news has to be shared in person, they surmised.
Claire McCaskill of Missouri, also on the short list of Democrats who were in play, told Kavanaugh that while everybody expressed confidence she’d do the right thing politically, she wished someone would tell her what the right thing was. She was in a difficult reelection battle in a state that Trump had carried by an eighteen-point margin.7 But she had voted against Gorsuch and was prepared to vote against Kavanaugh, citing her objections to the Citizens United decision. Kavanaugh, an equal-opportunity supporter of the First Amendment, had anticipated the Supreme Court’s reasoning in Citizens United in his own opinion in Emily’s List v Federal Election Commission, ruling that the abortion advocacy group had a right to raise and spend money to promote the candidates or policies of its choice.8 McCaskill was open about her growing unease with the Senate, finding it an unpleasant place to work in part because of the decline of centrists. She attributed this polarization to the flood of special-interest money into campaign coffers. Indeed, her own campaign had received $1.6 million from Emily’s List alone, including over half a million dollars in that very cycle.9
A meeting with Senator Sheldon Whitehouse of Rhode Island was unproductive, but Feinstein couldn’t have been friendlier. Meetings with Cory Booker of New Jersey, Kamala Harris of California, and Amy Klobuchar of Minnesota went well. All allowed the judge to preview some of the issues they would address during the hearings, ranging from race to antitrust law. Still, these meetings were very different from those with Republicans. Cory Booker, appearing at a press conference with other potential presidential candidates, had depicted Kavanaugh’s confirmation as a question of good versus evil. There were no bystanders, he said, descending into the most offensive hyperbole: “You are either complicit in the evil, you are either contributing to the wrong, or you are fighting against it.”10
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.