The first and most obvious, of course, is Kavanaugh, who won a seat on the Supreme Court. Throughout his career — as a law clerk to Justice Anthony Kennedy, as an assistant to special counsel Kenneth Starr, as a lawyer for the George W. Bush campaign during the 2000 Florida recount, as White House staff secretary during the Bush administration, as a judge on the U.S. Court of Appeals for the D.C. Circuit — Kavanaugh kept his eye on the ultimate goal: the highest court in the land.
Another candidate is Kennedy. When candidate Donald Trump released a list of potential Supreme Court nominees during the 2016 presidential campaign — a list prepared by Leonard Leo of the Federalist Society — Kavanaugh’s name was not on it. After Trump’s election, Kennedy made clear to the new president that if he were to retire, he would like to see his former law clerk Kavanaugh succeed him. This caused bitter disagreement between the White House and Leo, whose Federalist friends worried that Kavanaugh was too much of a “Bushie” and might not fulfill their hard-line right-wing ambitions. After a struggle in the White House, Trump and his advisers rejected Leo’s concerns and settled on Kavanaugh, delivering on Kennedy’s ambition.
Another constituency with supreme ambition was the Federalist Society. Founded in 1982 with the active support of such figures as Antonin Scalia and Robert Bork, then professors at the University of Chicago and Yale, respectively, the society’s initial goal was to articulate a coherent conservative approach to constitutional interpretation. Over time, though, and under the leadership of Executive Vice President and Co-Chairman Leo, the ambition of the Federalist Society became less academic and more political. Its supreme ambition was to stack the courts, and especially the Supreme Court, with jurists who would support a rigid right-wing agenda.
Although it tossed out theories like judicial restraint and originalism, over time the true measure of a successful judicial appointment from the perspective of the Federalist Society turned on results. The group sees things this way: Affirmative action is unconstitutional. There is no constitutional right to abortion. The Voting Rights Act is unconstitutional. Gerrymandering is not unconstitutional. Laws limiting campaign contributions and expenditures are unconstitutional. There is no constitutional right to same-sex marriage. Laws regulating guns are unconstitutional. And on and on and on. These outcomes have nothing to do with constitutional theory and everything to do with political goals.
With Kavanaugh replacing Kennedy, who was perceived as a moderate on some of these issues, the Supreme Court would have five justices (Chief Justice John Roberts, Clarence Thomas, Samuel Alito, Neil Gorsuch and Kavanaugh) who would form a majority that would be more politically conservative than at any time in living memory. This is the most dramatic meaning of supreme ambition. Marcus does a superb job of explaining and setting forth the details of this part of the story, including the often fascinating conflicts among Republicans about how best to proceed.
But, of course, the most dramatic part of the Kavanaugh confirmation was the testimony of Christine Blasey Ford. Her accusation of sexual assault by Kavanaugh blew the proceedings apart. In Marcus’s words, “Trump’s natural reaction . . . was to identify with Kavanaugh and disbelieve Ford.” Over furious Democratic objections, Senate Republicans did everything they could to block a serious investigation of Ford’s accusation and to ignore other allegations of similar misconduct by Kavanaugh that came to light. As Marcus reports, one of the many low points of the proceedings was when Ed Whelan, a prominent conservative lawyer, working “hand in glove with Leonard Leo and the Federalist Society’s public relations firm,” tweeted a series of blatantly false accusations that someone other than Kavanaugh had committed the assault on Ford.
As in the rest of “Supreme Ambition,” Marcus does a terrific job of unpacking the complex conflicts and interactions within the Senate Judiciary Committee and the FBI to present a fair-minded and evenhanded account of what went on behind the scenes, including with such critical figures as Sens. Jeff Flake, Dianne Feinstein, Susan Collins and Lisa Murkowski. The political stakes of this struggle were enormous, both for the senators who were up for reelection and for Trump’s ability to appoint Kennedy’s successor if Kavanaugh’s nomination failed and if the Democrats retook the Senate in the upcoming vote.
In the end, of course, the Senate Republicans — in particular Charles Grassley, chairman of the Judiciary Committee, and Majority Leader Mitch McConnell, who had blocked President Barack Obama’s nomination of Merrick Garland — arranged for Kavanaugh to be confirmed on almost a straight party-line vote.
Marcus’s take on all this is instructive. She knew Kavanaugh for a quarter-century before his nomination and had always found him to be “open and gracious.” Indeed, at the time of his nomination she did not “see a substantive basis for opposing him.” But when Ford entered the picture, things changed. Although Marcus believes that Ford was probably accurate in her recollection, she also concluded that Kavanaugh was probably not lying about his own memories. This was possible because what “was so searing to Ford was a passing frolic for Kavanaugh,” who was, Ford testified, “heavily intoxicated” at the time of the incident.
Although Marcus believes that the Senate Republicans were irresponsible in not investigating the other allegations against Kavanaugh that came to light, the central point for her is that, unlike a criminal defendant, who has a presumption of innocence, a nominee to serve for life on the highest court in the land “shoulders the burden of persuasion,” and “Kavanaugh did not meet this test.” That he was confirmed amid such circumstances, she concludes, will be “a blot on Kavanaugh” and on the Supreme Court that is “indelible.”
Brett Kavanaugh and the Conservative Takeover
By Ruth Marcus
Simon & Schuster. 482 pp. $28