McGahn already knew Kavanaugh, who had administered his oath of office for the Federal Election Commission in 2008. McGahn was exceedingly familiar with his judicial philosophy, having pored over his opinions. The interview that Friday was not about his opinions but about any potentially embarrassing information the White House needed to know before deciding. Known as an “SDR” review—short for sex, drugs, and rock and roll—this kind of interview became common after the failed Supreme Court nomination in 1987 of Judge Douglas Ginsburg of the D.C. Circuit, who was forced to withdraw after reports emerged that he’d smoked marijuana with some of his students while a professor at Harvard. Before Anthony Kennedy was nominated for the same seat, he was confronted with hundreds of embarrassing questions about when he’d first had sex, with how many different women, and whether any pregnancies had resulted. He was asked about sexually transmitted diseases, aberrant sexual activities, drug use, drunk driving, and even animal abuse.12
Kavanaugh’s interview with McGahn went well, but he knew it would ultimately be President Trump’s decision. He’d had an up-close view of the Supreme Court selection process when he served as White House staff secretary under President George W. Bush, seeing how judicial advisors would narrow down a list of contenders before presenting the finalists to the president so that he could take their measure. He wasn’t entirely sure Trump would like him.
A D.C. native who had worked closely with President Bush, Kavanaugh was not what the anti-establishment Trump was looking for. The Bush family had publicly opposed Trump, and the disdain had been mutual. Trump defeated former Florida governor Jeb Bush in the 2016 Republican presidential race by brutally criticizing his brother George’s record as president. Kavanaugh’s name hadn’t even appeared on Trump’s initial lists of prospective Supreme Court nominees.
At the same time, Kavanaugh had a broad network of friends and allies—from federal judges to conservative media stars to his family dry cleaner—who could vouch for his ability and character and thought he should not just be on the list but at the top. His name had been openly discussed in major media as the most likely Republican nominee for the Court since at least 2012.13 His lengthy record as a conservative appellate judge was well known and widely respected.
Kavanaugh had a particularly loyal network of former clerks. He had hired twenty-five women and twenty-three men as law clerks in his dozen years on the D.C. Circuit. An astounding thirty-nine of them went on to clerk at the Supreme Court, securing his coveted spot as the top “feeder judge” on the federal bench. The first time Kavanaugh had really thought about the Supreme Court was when, as a fifteen-year-old, he read The Brethren, Bob Woodward’s behind-the-scenes account of the Court in the 1970s. The stars of the book were the clerks, and he thought it seemed like a great job—even better than the job of a justice.
Kavanaugh was regularly in touch with his former clerks, hosting them at holiday parties and baseball games. Every five years they would get together with their spouses for a reunion, where the judge would introduce those who were new since the previous reunion, describing in detail where he met each clerk and what he liked about him or her. He offered personal touches, as when he recounted a funny toast given at a clerk’s wedding or reminisced about trading belts with a clerk who was underdressed on his way to interview with the chief justice.
As devoted to their mentor as he was to them, Kavanaugh’s former clerks took on the task of lobbying for his nomination, talking to anybody who would listen at the White House and in conservative legal circles. Some of them worked inside the White House counsel’s office itself. Whether from the inside or the outside, the lobbying helped. Not only was Kavanaugh now on the list, he was widely considered a front-runner.
The president met with Kavanaugh on Monday, July 2, asking him about his background and White House experience. Trump was looking for someone who could sit on the court for thirty to forty years, was exceptionally well qualified, was an originalist, and was not weak. Kavanaugh emphasized that he’d been tested throughout his career and had stood by his principles in moments of difficulty. It was a friendly conversation, not a quiz, and it was over in less than a half-hour. The president felt that Kavanaugh had shown signs of courage and decisiveness in his interview, and that kept him in contention.
Judges are not supposed to be political, but their selection and confirmation, committed by the Constitution to political actors, is unavoidably so. Court watchers knew Kavanaugh was the one to beat from the moment he was added to the list, and online bettors gave him the best odds for securing the nomination as soon as Kennedy retired.14 But there were other contenders, some of whom had serious bases of support. Other than Kethledge, Kavanaugh, and Barrett, Trump was considering Thomas Hardiman of the Third Circuit and Amul Thapar of the Sixth Circuit. He met with all of them that Monday except Hardiman, whom he’d met during the previous nomination process. He also interviewed other candidates by phone.15
Demand Justice, a left-wing interest group recently founded by Brian Fallon, the campaign spokesman for Hillary Clinton, the Democratic presidential nominee in 2016, announced plans to spend $1 million in television ads against the eventual nominee, whoever he or she might be, and dropped online ads against three of the contenders within a day of Kennedy’s retirement.16 One of the targets was Amy Coney Barrett, a favorite of conservatives since her deft handling of hostile questions about her Catholic faith from Democratic senators and the media after her nomination to the appellate bench the previous year. The New York Times suggested a religious organization to which she belonged was a cult, while Senator Dianne Feinstein, the top Democrat of the Senate Judiciary Committee, criticized the role of faith in her life, sneering that “the dogma lives loudly within you.”17 That tortured phrase became a rallying cry for Christian youth groups and others who were impressed that Barrett held firm under fire for her faith.
Demand Justice’s ads signaled that the left was serious. But on the right, nothing was being taken for granted. The Judicial Crisis Network was prepared to spend tens of millions of dollars, as it had already done in the effort to confirm Justice Gorsuch to Justice Scalia’s seat. JCN (of which one of the authors is chief counsel and policy director) had served as a hub of outside groups supporting conservative judicial nominees since 2005. And by the time Justice Kennedy retired, it was ready for its greatest test yet. The group would supervise an extensive research operation, organize rapid response, brief journalists and opinion leaders, and activate grassroots leaders across the country while running the most robust paid media campaign in the history of Supreme Court confirmation battles. JCN’s first ad, which began running the day the vacancy was announced, built on the success of the Gorsuch confirmation of the year before. “Like Justice Gorsuch, all of the men and women on President Trump’s judicial list are the best and brightest in their field.” It concluded, “We look forward to President Trump nominating another great justice.”18
In the twelve days between Kennedy’s retirement and Trump’s announcement of his nominee, the major media were focused on the horse race—which candidate was gaining, which was falling behind. But the conservative media were hosting a vibrant debate over the merits of potential nominees, a debate fed by various interest groups concerned about how each candidate might treat their particular issue and by the advocates of each candidate.