Brett M. Kavanaugh thanked President Trump for his nomination to the Supreme Court on Monday night. Almost immediately, he made a thoroughly strange and quite possibly bogus claim.
“No president has ever consulted more widely, or talked with more people from more backgrounds, to seek input about a Supreme Court nomination,” Kavanaugh said.
It may seem like a throwaway line — a bit of harmless political hyperbole. But this was also the first public claim from a potential Supreme Court justice who will be tasked with interpreting and parsing the law down to the letter. Specificity and precision are the name of the game in Kavanaugh's chosen profession. How on earth could he be so sure?
There have been 162 nominations to the Supreme Court, according to U.S. Senate records, over the past 229 years. (The Supreme Court began in 1789.) For Kavanaugh to make such a claim, he would have to have studied not just those confirmations, but the often-secretive selection processes that preceded them. These things, quite simply, are not a matter of public record or even all that well documented by reporters. A week ago, for example, most media outlets were reporting the list of three finalists did not include Thomas Hardiman. By the end, it was believed Kavanaugh's top competitor was Hardiman.
It is basically impossible to know everybody with whom George W. Bush consulted on his Supreme Court nominations, much less George Washington. There may be some justification for Kavanaugh's comment based upon the increasing diversity of American politics and society more generally, but it is a completely unprovable assertion — and one that would require a basically unheard-of level of research to substantiate.
Beyond that, there are reasons to doubt it. Trump actually leaned quite heavily on a list of names he did not put together himself but were instead provided by the conservative Federalist Society — a group whose ideological diversity is not exactly vast. Trump did not stray from that list for either this selection or Neil M. Gorsuch's. And Trump spent a relatively brief two-week period making this decision. Barack Obama, by contrast, spent about a month reviewing his options before he nominated Sonia Sotomayor and Elena Kagan.
The claim does fit a pattern with Trump, though, in which those around him feel pressure — whether overt or not — to flatter him in the most glowing and hyperbolic terms possible. The most ridiculous example was the letter Trump's then-personal doctor, Harold Bornstein, wrote during the 2016 campaign, which contended, “If elected, Mr. Trump, I can state unequivocally, will be the healthiest individual ever elected to the presidency.” Bornstein now says the note was essentially dictated by Trump or even coerced.
But pleasing Trump can come at the expense of your credibility. Deputy Attorney General Rod J. Rosenstein, for instance, reportedly has rued the day he provided a justification for firing then-FBI Director James B. Comey that Trump later repeatedly contradicted. The New York Times reported recently Rosenstein felt “used.”
Kavanaugh's comment may not come back to bite him in the same way, though, for one key reason: It is difficult, if not impossible, to disprove. Although Trump has made clear Rosenstein's letter was a front, we will never know the true identities of everyone Trump talked to — just like we will never know the true identities of everyone Washington talked to. Bornstein's claim was patently ridiculous given Trump's age (the oldest president ever elected), weight and personal habits, and we have learned more about his health since his election that disproves the claim.
(Trump's former White House doctor, Ronny L. Jackson, also ran into this — albeit to a lesser degree — when he was briefly nominated to become veterans affairs secretary. Jackson's own over-the-top statements about Trump's health quickly became more relevant.)
That said, regardless of whether this will cost Kavanaugh, it is a thoroughly inauspicious way to begin your application to the nation's highest court, where you will be deciding the merits of the country's most important legal and factual claims.