Kavanaugh moved into chambers overlooking the Library of Congress, toward the back of the Supreme Court building. Alito had occupied those chambers for the previous nine years, and Scalia for eighteen years before that. For the thirty years before that, they belonged to Justice William Brennan. His office includes a working fireplace prepared each morning to be lit. During the winter months, Kavanaugh was grateful for its comfort and warmth.
The other justices made him feel welcome, each paying a visit to show his or her support. Justice Sotomayor told him that what matters is what he does on the Court and reminded him that “we’re family here.” While Justice Thomas had endured a uniquely brutal confirmation process, all the justices remembered it’s taking a heavier toll on them than they had expected.
As overwhelming an ordeal as Kavanaugh had just endured, he couldn’t afford even a day’s rest; oral arguments would take place on Tuesday, October 9. He had browsed a brief before his confirmation vote, but wasn’t able to focus until Sunday, the day after his confirmation. Other justices offered help by sharing bench memos.
On Kavanaugh’s first day on the bench, October 9, Justice Kagan made a point of talking to him during the bar admission ceremony before oral arguments, demonstrating to the public that Kavanaugh’s “team of nine” analogy was not far wrong. At the end of arguments she publicly shook his hand when they got up. The gracious act was reassuring, as protesters were still gathered outside. The culture of the Court is more like a family. Even the spouses of retired and deceased justices, such as Mary Kennedy and Maureen Scalia, return for events.
While Kavanaugh began to participate in deliberations immediately, his formal investiture did not take place until November 8. In attendance were family and friends, his former colleagues on the court of appeals, and Senators Mitch McConnell and Lindsey Graham. Don McGahn almost didn’t make it inside. Having left his job as White House counsel, he no longer had a security detail. He had parked a few blocks away, and when he arrived at the Supreme Court, the police were shutting off access. By the time he got through security and into the Court, he was told that he was a moment too late, so he sent Kavanaugh a text message that they had turned him away and left the building. Outside, someone flagged him down and brought him back in. The White House staff secretary, Derek Lyons, had taken his seat, so he sat in the next row back, beside Justice Kennedy.
Kavanaugh was seated in Chief Justice John Marshall’s chair, which has been used for the investiture of every member of the Court since Lewis F. Powell Jr. in 1972. He lowered himself into it carefully, so as not to damage the historical artifact. President and Mrs. Trump were the last ones seated, entering the room just after McGahn.
The ceremony lasted only a few minutes. Kavanaugh’s commission was presented by Matthew Whitaker, who had been named the acting attorney general only the day before. A large man, Whitaker had scrambled to find a formal morning coat that he could fit into.
The interval of a few weeks before the investiture allowed Ashley to order a dress for the occasion. The White House ceremony in October took place immediately after confirmation, so she had to select from something in her closet. She was conscious that she couldn’t have too much fun with fashion or accessories without photos looking dated in the future. The confirmation battle had been brutal, but she and her husband believed it had happened for a reason. Refined by fire, they had emerged stronger.
Traditionally, a newly invested justice, accompanied by the chief justice, descended the long set of steps from the Court to the plaza, where his family awaited him. Assuming that the traditional walk would be an invitation to protesters, Kavanaugh decided to pose for pictures with the chief justice in the conference room instead. Other members of the court regretted the passing of the tradition, but Kavanaugh preferred a celebratory message of unity.
Justice Ginsburg did not attend the investiture ceremony. She had broken three ribs in a fall two days earlier.
CHAPTER TWELVE
Legitimacy
The election night of November 6, 2018, was filled with uncertainty. Republicans had enjoyed massive gains in the House of Representatives during the Obama years—the 2010 midterm elections saw them pick up sixty-three seats, the biggest electoral gain for a major party since 1948. But now that a Republican was president, history and the polls suggested that this would be a good night for the Democrats. And it was. They gained thirty-nine seats, reclaiming a majority in the House for the first time in eight years.
The Senate was a different story. Despite political headwinds, Republicans benefited from a favorable electoral map—far fewer GOP incumbents were up for reelection than Democrats. Ten of the twenty-five Democratic senators running for reelection were in states that Trump had carried, and six of those seats were considered vulnerable: North Dakota, Florida, West Virginia, Indiana, Missouri, and Montana. Republicans were expected to expand their slim majority in the upper chamber, but the forecast was clouded by the “X-factor”: the Kavanaugh confirmation.
When Christine Blasey Ford’s allegation turned an already contentious confirmation process into a political conflagration, Democrats began to hope that the controversy might change their fortunes in the Senate. In a New York Times piece titled “Kavanaugh Was Supposed to Be a Midterm Boon for G.O.P. Not Anymore,” Jonathan Martin reported that “in Missouri and other politically competitive battleground states, leaders in both parties are increasingly doubtful that [Republican senatorial candidate Josh] Hawley and other Republicans can wield the Kavanaugh nomination as a cudgel without risking unpredictable repercussions in the midterm elections.”1
As allegations piled up and the confirmation seemed in doubt, Democrats were openly whispering that taking down Kavanaugh was part of a comprehensive electoral strategy. If Kavanaugh’s confirmation failed, “Dems believe they can juice turnout—already hitting record levels—by playing off the huge public attention to the court, and Roe v Wade in particular,” reported Axios’s Mike Allen. Further, “They envision President Obama and Michelle Obama locking arms with the Clintons, the Bidens, and Democratic congressional leaders to crank up a presidential-election-sized campaign. They feel confident every rich liberal in America would help fund this effort.”2
By the final week of Kavanaugh’s confirmation process, however, it was becoming clear that the circus atmosphere and the torrent of absurd allegations were instead firing up Republicans. An NPR–PBS NewsHour–Marist poll released on October 3 found that the so-called “enthusiasm gap” had evaporated. “In July, there was a 10-point gap between the number of Democrats and Republicans saying the November elections were ‘very important,’ ” noted the pollsters. Now the enthusiasm of Republicans and Democrats was even.3
And the timing and a plethora of anecdotes from Republican officials strongly suggest that Kavanaugh was the cause of the GOP boost. “It’s got to be Kavanaugh,” the Republican pollster Robert Blizzard told the McClatchy news service. Another Republican pollster, Whit Ayres, also confirmed to McClatchy that the Kavanaugh fight was motivating voters: “It’s the difference between victory and defeat in a close race. They’re pretty upset about how Kavanaugh has been treated.” Other Republican pollsters and strategists confirmed there had been a polling bump in individual Senate races, as well as gains in support from Republican women, in response to Kavanaugh.4 The connection seemed obvious enough to Senate Majority Leader Mitch McConnell. “The ironies of ironies, this has actually produced an incredible surge of interest among these Republican voters going into the fall election,” he told USA Today the day Kavanaugh was confirmed to the Supreme Court. “We’ve all been perplexed about how to get our people as interested as we know the other side is, well this has done it.”5