But they had to keep working. The White House was constantly asking for information, including lists of people who would be invited to a nomination announcement if Kavanaugh were selected. They had to prepare a speech for that event, however unlikely it now seemed, and Kavanaugh, who had taught a class at Harvard on the Supreme Court, knew it would be important. It would be his only chance to make a first impression on most of the country. And it would be his only public remarks before the confirmation hearings eight weeks later, an interval when the opposition could be counted on to raise a deafening howl. Chris Michel, a former Bush speechwriter who had also clerked for Kavanaugh, was helping with the speech. The judge himself was an experienced wordsmith, having worked on presidential speeches from the State of the Union on down, but his first draft clocked in at thirty-seven minutes, far longer than the five minutes that would be appropriate. “We’ve got to go long before we can go short,” he joked.
Sunday arrived, and Trump called Leo again asking for his thoughts on Kavanaugh. Leo suggested that he meet with Kavanaugh again if he was so uncertain.
Kavanaugh, a regular churchgoer, served as a lector at Blessed Sacrament parish in Chevy Chase every eight weeks. As Providence would have it, his turn was up again, and he was struck by the passage he would read that evening. It was from St. Paul’s Second Epistle to the Corinthians:
Therefore, that I might not become too elated, a thorn in the flesh was given to me, an angel of Satan, to beat me, to keep me from being too elated. Three times I begged the Lord about this, that it might leave me, but he said to me, “My grace is sufficient for you, for power is made perfect in weakness.” I will rather boast most gladly of my weaknesses, in order that the power of Christ may dwell with me. Therefore, I am content with weaknesses, insults, hardships, persecutions, and constraints, for the sake of Christ; for when I am weak, then I am strong.31
He thought the reading was so comforting that he shared it with his clerks. As affecting as he found the apostle’s words at that stressful moment, he could little imagine how apropos they would be in the coming months.
On his way to church for the 5:30 Mass, Kavanaugh got a call asking if he could meet with the president again at seven o’clock that evening. He was wearing a coat and tie but not a suit. Ashley was just getting home from a lacrosse tournament with the girls. He called her to see if she could bring a suit to church and stick it in the car driven by his security detail. She met the car in the parking lot, rolled up the suit so it wasn’t obvious what she was carrying, and made the transfer.
The marshals had told Ashley to clear herself and the girls out of the house. Whether or not her husband was chosen, the cameras already set up across the street would be following the family’s every movement, looking for clues about the nomination. So they packed their bags and left the home by a hidden passageway connecting their yard and the neighbors’, undetected by the press across the street. To hide their escape plans, they stashed their luggage in a neighbor’s tree house and asked a neighbor girl to retrieve it for them later. Then they went out to dinner as normally as possible. Afterwards, they made sure they weren’t being followed and instead of returning home drove to the house of close friends who were vacationing on Martha’s Vineyard.
After Mass, Kavanaugh’s security detail switched cars in the Woodley Park neighborhood of Northwest D.C. to lose any potential tails, and he changed clothes as the car made its way to the White House. He met for more than an hour with the president and Melania Trump in the Yellow Oval Room, used for receptions for important guests, on the second floor of the White House residence. They discussed his background, his family, his views on the Court, and his impressions of Justice Kennedy.
At the end of the conversation, President Trump told Kavanaugh he had made his decision. He wanted to nominate him to the Supreme Court. The confirmation, he assured his nominee, would be the quickest and easiest ever because of the judge’s impeccable credentials and background. He told him to have fun.
The news, known only to a precious few, was overwhelming. No one suspected what had been set in motion.
CHAPTER TWO
The List
Justice Scalia was dead.
Almost thirty years after his appointment to the Supreme Court, Antonin Scalia was found dead in his bed at Cibolo Creek Ranch, a thirty-thousand-acre hunting resort near Marfa in West Texas. The seventy-nine-year-old jurist was the longest-serving member of the Court at the time of his death, but he kept an active schedule and was not ailing. Appointed by President Ronald Reagan, Scalia was beloved by conservatives for his sparkling wit, incisive intellect, and compelling advocacy of constitutional originalism, a judicial philosophy that pushed back on judge-driven constitutional “evolution” by attempting to interpret the Constitution according to its actual words as they were understood at the time of their ratification.
Senator Mitch McConnell had just landed on St. Thomas in the Virgin Islands when he received the startling news from Leonard Leo. The 2016 presidential primary season was in full swing, and McConnell and his wife, Elaine Chao, who had been the secretary of labor in the George W. Bush administration, had escaped to the Caribbean during the Washington’s Birthday holiday. He immediately went to the hotel and turned the television on.
McConnell had first met Scalia at a staff meeting at the Department of Justice during the Ford administration, when McConnell was a lowly deputy assistant secretary for legislative affairs. Robert Bork was the solicitor general; Laurence Silberman, a future D.C. Circuit judge, was deputy attorney general; and Scalia was the assistant attorney general in charge of the Office of Legal Counsel. McConnell, intimidated by their sense of humor and brilliance, was worried he’d say something stupid and barely opened his mouth. He later returned to Kentucky and was elected to the U.S. Senate in 1984, just in time to vote for Scalia’s confirmation. Not that his vote was needed. Scalia was unanimously confirmed, becoming the first Italian American on the Court.
After reflecting on the personal loss of a man he’d known for more than four decades, McConnell turned to thinking about how the Senate he led should handle the vacancy. What if the shoe were on the other foot, he wondered, and the Democrats controlled the Senate and a Republican president was in the last year of his term of office? Surely a Republican president would never get a Supreme Court nominee confirmed by the opposing party in an election year. Days later, his staff would tell him that his instincts were correct. There had been only three confirmations in the final year of a presidency when the opposing party controlled the Senate, most recently in 1888, when Grover Cleveland nominated Melville W. Fuller to be chief justice.
President Obama’s own vice president, Joseph Biden, had given a floor speech in June 1992 when he was chairman of the Senate Judiciary Committee and George H. W. Bush was running for reelection, arguing that presidents should not try to fill a vacancy on the Supreme Court once campaign season was underway but should follow the example of “a majority of [their] predecessors” and wait until the election is over. Even if such a nomination were made, it should not be considered, as “Senate consideration of a nominee under these circumstances is not fair to the President, to the nominee, or to the Senate itself.” Instead he suggested that the Senate Judiciary Committee should wait to schedule nomination hearings “after the political campaign season is over.”1