Perhaps because that earlier confirmation battle had been so brutal, Ashley prayed that God would deliver them from another. They had a wonderful life with their children and with both their jobs—she was now a town manager in Chevy Chase, Maryland. She was proud he was a front-runner for the Supreme Court, but she hoped he would not be nominated.
President Trump, relying on the recommendation of his judicial advisors, saw this as Kavanaugh’s race to lose. But he sought advice from a wide variety of sources, to the consternation of many who wished he would simply go with Kavanaugh.
Part of the problem was the high quality of those from whom he had to choose. It was hard to disagree that Barrett, for instance, was an attractive pick. But she had been a judge for only a few months, which meant she had few opinions to analyze. Conservative groups usually require a track record before they endorse a nominee. In Barrett’s case, they felt the Catholic mother of seven who had defended her faith before the Senate Judiciary Committee could be counted on to stay strong in the face of liberal opposition. Part of her support came from outside groups who worried that any male nominee, in the wake of the #MeToo movement, would be accused of inappropriate sexual behavior, regardless of his merits.
As much as the president and his advisors liked Barrett and trusted that she was an originalist, they knew she would have difficulty getting through a barely Republican Senate. When moderate senators whose votes were necessary had been asked for their advice early in the process, they had discouraged choosing her. The White House concluded that the decision not to nominate Barrett had been made by the people of Alabama when they elected a Democrat to the Senate the previous December. Losing that seat meant that the White House had almost no margin for error.
Kethledge was also strongly considered, but he had not written the range of opinions that Kavanaugh had, and some of his opinions worried groups focused on strong immigration laws. Late in the process Trump became interested in Hardiman again, a judge with a history of good opinions, but perceived as lacking Kavanaugh’s depth of reasoning or commitment to originalism. Still, all had excellent opinions. All would be excellent justices.
Vice President Mike Pence interviewed finalists, speaking with Barrett and Kethledge at a family lake house in Indiana and with Hardiman and Kavanaugh at the vice president’s residence in Washington. Pence asked Barrett, a fellow Indianan, who she thought should be nominated if not her. She strongly endorsed Kavanaugh.
Kavanaugh’s interview with the vice president, on Independence Day, was a cordial chat that lasted more than an hour, in part because of the judge’s habit of answering questions thoroughly. In every interview, Kavanaugh wanted to perform well. He did not see himself as a shoo-in, and he knew how many finalists were reported to have stumbled in their meetings with the president and his team. He would not stumble.
Kavanaugh was asked whom he recommended for the seat if not himself, and he praised multiple contenders, including Barrett. The world of federal judges is small, and Kavanaugh knew and respected several of the short-listers. He had become acquainted with Barrett through visits to Notre Dame Law School and discussions about candidates for clerkships. He had even attended her formal installation at the Seventh Circuit earlier that year. Kavanaugh and Kethledge and their wives had sat together at a reunion of Kennedy clerks the previous summer.
President Trump spent the following weekend at his resort in New Jersey, but he continued asking people for advice.27 It may have been Kavanaugh’s race to lose, but losing was a real possibility. In multiple conversations with both formal and informal judicial advisors, the president went back and forth about the decision. McConnell was complaining about documents, and the base was pushing for a more exciting pick. And Kavanaugh was about as pure a specimen of the “Bush” Republican as one could imagine.
Leonard Leo, the executive vice president of the Federalist Society, who had advised Bush and Trump on past Supreme Court nominations, told the president he had an extraordinary group of judges. He should pick whomever he felt most comfortable with and then own the decision. Leo’s advice was carefully considered. The Federalist Society, a powerhouse organization of lawyers, legal academics, judges, and law students, is the cornerstone of today’s conservative legal movement. It champions three core principles: (1) the state exists to preserve freedom; (2) the separation of governmental powers is central to the Constitution; and (3) the judiciary is to say what the law is, not what it should be. Other than that, the Federalist Society takes no policy positions, and robust debate is common and encouraged.
McGahn and Leo had hoped Trump would make his announcement before the weekend, worrying that more time would not improve the decision. Leo found out not only who was golfing with the president that weekend but who was slated to ride in his golf cart each round, and he spoke with two of them—Mike Ferguson, a former congressman from New Jersey, and Sean Hannity of Fox News. He told them that he would not be surprised if they favored a particular candidate but asked them not to speak ill of any of the potential nominees. He also asked them to impress upon the president that he had to own the decision and pick the person with whom he was most comfortable.
Ferguson knew only Barrett, whom he thought the world of, but had a favorable view of the entire list because he respected Leo’s judgment. The president discussed the decision over golf and again that night at a dinner with many members of the Trump and Pence families. As he weighed the pluses and minuses of each candidate, Trump came to the conclusion that Kavanaugh would be among the safer choices.
The evening before, the New York Times published what amounted to a plea from McConnell to not pick Kavanaugh. “McConnell Tries to Nudge Trump Toward Two Supreme Court Options,” was the headline of the article about McConnell’s strong preference for Kethledge or Hardiman, either of whom he thought would have a better chance of getting through the Senate. He’d cited the “millions” of pages of documents the Senate Judiciary Committee would have to sift through if Kavanaugh were the nominee.28
White House advisors did not think paperwork was a deal-breaker, but Kavanaugh’s team knew that McConnell’s concern was not a good sign. His former clerks countered that the paperwork was actually a strength, showing he had a record and had been involved in public service. People should not be penalized for working to advance conservative principles.
But then other articles appeared suggesting his front-runner status was in peril. The New York Times was playing up his closeness to the Bushes and reporting that his critics were passing around a photo of Bush’s political guru Karl Rove with his arm around Kavanaugh.29 He had always known that his Bush ties could be a problem, but it was a problem that was out of his control.
Time magazine reported that “Kavanaugh had been considered a frontrunner, but his fortunes may be torpedoed by Trump’s grudges,” again citing Kavanaugh’s closeness to the Bush dynasty. The article ended ominously: “White House Counsel Don McGahn, a Kavanaugh booster, has largely stopped making the case for his friend, sources say.”30
Saturday night, July 7, was a dark moment for the Kavanaugh team. It appeared that McConnell was opposed, McGahn had lost faith, and Trump was desperate to find another candidate. Gathered in the hot conference room, empty pizza boxes piled high, the team started coming to terms with their likely loss. Roman Martinez told stories about his time working for the U.S. government in postwar Iraq, finding parallels with the high-stakes political fights there. Later that night, Kavanaugh sent them an email encouraging them to act with dignity and remain calm no matter how the process ended, a sure sign that no one thought he would win the nomination.