Sometimes the criticism of Kavanaugh baffled them. The day after Kennedy’s retirement, the popular conservative pundit Ben Shapiro, himself a lawyer, had written that he “has the most red flags” of the top five contenders, suggesting that Kavanaugh—who was particularly well known for his critiques of bureaucratic overreach—supported “the notion that administrative agencies ought to be granted deference by the judicial branch.”23 The former clerks found people who could talk to Shapiro and pass along an effective response, and he corrected the error.24
As hard as his former clerks and the White House were working, nobody was working harder than Kavanaugh himself, who was famous for his diligence.25 The round-the-clock news cycle meant late hours. Stories would break late into the evening, requiring a rapid response no matter the time. The judge was in his chambers past midnight most nights, country music playing on the radio, the influence, perhaps, of his Texan wife. Ashley tended to think that what was meant to happen would happen. He, by contrast, believed that if you prepared enough, you could be ready for anything. The decision of whom to nominate to the Supreme Court was not his to make, but he wouldn’t be able to live with himself if he were not chosen because he had failed to prepare. The longtime athlete believed in leaving everything on the field. So he reread his opinions and pored over his record, thinking about how to talk about them. He described and evaluated his judicial philosophy, winnowing down volumes of work into talking points he could use in meetings.
The Constitution gives the president the power to appoint Supreme Court justices, subject to the advice and consent of the Senate. The advice of senators was solicited early. The list of potential nominees had been public prior to Kennedy’s retirement, of course, and the White House sought the views of five moderate senators—the Republicans Susan Collins of Maine and Lisa Murkowski of Alaska and the Democrats Joe Donnelly of Indiana, Heidi Heitkamp of North Dakota, and Joe Manchin of West Virginia—each of whom could have a decisive vote.
Collins was on the floor of the Senate the day after Kennedy’s retirement when she got the email inviting her to the White House to discuss the nomination. She told Murkowski, who had also just received an invitation. They decided to combine their appointments, which were back to back. Collins told the president she hoped he would nominate a judge with intelligence, integrity, and experience and noted her concerns about adherence to precedent and the separation of powers. They did not discuss particular candidates as much as the desired judicial philosophy. Collins encouraged the president to not feel limited to his initial list, though she was pleased when she learned he had refreshed it. As the two Republican women were departing, Senator Manchin arrived to discuss his views with the president and McGahn.
Senator Mitch McConnell, who saw judicial appointments as an important part of his legacy, was ecstatic at the opportunity to confirm another Supreme Court appointment. An open supporter of Thapar, a fellow Kentuckian whom he had first brought to Trump’s attention, he expressed serious concern about the volume of paperwork a Kavanaugh nomination would produce. Besides the papers from his time on the Whitewater independent counsel’s staff and in the White House counsel’s office, there was his tenure as the White House staff secretary, when every piece of paper in the White House crossed his desk.
The staff of the Senate Judiciary Committee shared McConnell’s concern and discussed it with reporters. An article on the Daily Caller, citing Senate aides, reported that the prospect of Kavanaugh’s nomination had “some influential conservatives cringing behind the scenes. . . . ‘The White House Counsel’s Office is reeling today on Kavanaugh,’ says one GOP judicial insider with direct knowledge of the selection process. ‘Kavanaugh is crashing and burning today. I cannot figure out how this happened in one day.’ ” Quoting an unnamed “senior administration official” who called Kavanaugh the “low-energy Jeb Bush pick” and an “influential Hill staffer” who called him “John Roberts incarnate,” the article emphasized Kavanaugh’s ties to the Bush administration and to McGahn.26 It also included a leak of confidential information about how many millions of records would have to be processed. Kavanaugh’s team had hoped to avoid such “process” stories and to keep the focus on qualifications. They quickly determined that the leaker was a key aide on the Senate Judiciary Committee who supported Kethledge.
These were trying days for Ashley Kavanaugh. She had met her husband in 2001, when they both worked in the White House. Having begun her service to George W. Bush as a personal secretary when she was still a student at the University of Texas and he was governor, she came to the White House after working on his presidential campaign. She was from Abilene, a couple of hours from Midland, where Bush had grown up. A warm and welcoming woman with a kind smile and an easy laugh, Ashley Estes was beloved by her colleagues. She was encouraging, optimistic, determined, and, importantly, tough.
Kavanaugh and Ashley had crossed paths early in the Bush presidency, while he was working as an associate counsel in the White House counsel’s office. She found him nice, perhaps too nice, and wasn’t sure she was interested in him. Friends encouraged her to give him a shot. Finally, on September 10, 2001, she had a late dinner with him at Cafe Deluxe in Georgetown after work. They had a nice time, but the next morning everything changed. They were evacuated from the White House after terrorists attacked the World Trade Center and the Pentagon and it looked like another airliner was headed their way. Kavanaugh distinctly remembers watching her, in a black-and-white-checked shirt and black pants, running down West Executive Avenue, the closed street that borders the West Wing.
Amid the trauma and intense activity in the White House following 9/11, they paused their dating, but Kavanaugh, a baseball fan, eventually took her to Cal Ripken’s last game on October 6, the first of many sporting events they’d attend together. It was a busy and stressful period at the White House, but they made time for each other. They were discreet about their relationship, but after a year or so, one of Laura Bush’s personal aides let the news slip. The Bushes were immediately supportive, and the president began good-naturedly teasing them. When Kavanaugh became staff secretary in July 2003, Ashley’s work and his began to overlap. He also saw more of President Bush, who encouraged the two to get married. They were engaged by Christmas of that year and celebrated a Texas-sized wedding the next July in D.C. President and Mrs. Bush even hosted a party for them in the Rose Garden a couple of days before the wedding.
After Bush’s reelection, Ashley decided to leave her position, which required extremely long hours. When she discussed her options with President Bush, he encouraged her to consider a few different paths, including having children, telling her she’d make an excellent mother. That night, spurred on by the conversation, she went home and took a pregnancy test. She was pregnant with her and Brett’s first child, Margaret. The Bushes were thrilled by the good news. President Bush always said Ashley was a good soul, and everyone around her found her a source of cheer. She left the White House but stayed in the Bush fold for an additional six years, albeit in a less intense position, helping set up the George W. Bush Presidential Library.
The Kavanaughs genuinely loved the Bushes and admired the president’s character and how he treated his wife, friends, and employees. President Bush nominated Kavanaugh to the U.S. Court of Appeals for the D.C. Circuit in 2003, although his confirmation took three years and two separate nomination hearings because of obstruction from Senate Democrats. They were outraged that someone who had worked on the Whitewater investigation of President Clinton and was so closely associated with President Bush would be elevated to the federal bench, but in 2006 he was finally confirmed.