Joan Biskupic is a CNN legal analyst and Supreme Court biographer. Her most recent book is “The Chief: The Life and Turbulent Times of Chief Justice John Roberts.”
Federal judges are supposed to be neutral decision-makers. But any pretense of neutrality has slipped away as the appointment process for Supreme Court justices and prominent lower-court judges has become mired in political partisanship.
President Trump seems to expect his appointees to automatically side with him, just as he expects judges selected by President Barack Obama to be against him. His administration has allowed conservative advocates to play an outsize role in picking nominees. And the Senate, with its power to confirm or reject those choices, has sunk deeper into partisan score-settling. Hearings are now staged, circuslike spectacles, rather than a forum for truthful exchange.
Republicans and Democrats alike have contributed to today’s hyper-politicized process. But nothing approaches the muscle that Senate Majority Leader Mitch McConnell exerts. McConnell thwarted Obama’s opportunity to replace the late justice Antonin Scalia in 2016 and, once Trump took office in 2017, began directing the swift approval of a record number of appeals court judges, as well as two Supreme Court justices.
In his new book, “Confirmation Bias,” journalist Carl Hulse delves deeply into recent confirmation battles, describing the Senate’s advice-and-consent power as “corrupted to what appears to be the point of no return.”
The book is an absorbing, if dispiriting, look at the maneuverings of inside players like McConnell and Donald McGahn, Trump’s first White House counsel, and outside advocates like Leonard Leo of the Federalist Society, who appears to have steered judicial selection as much as anyone at the White House.
Hulse, a New York Times correspondent, probes moments of escalation over the years and the backroom machinations of the Trump strategy now transforming the courts and the law. Inevitably, he covers previously reported ground, but “Confirmation Bias” is an important guide at this crucial time for the stature of America’s judiciary.
Chief Justice John Roberts, himself a Republican appointee (of George W. Bush), has lamented the current state of affairs. In public speeches, he has expressed concern that anyone witnessing the intensely partisan atmosphere of confirmation hearings would presume that the appointee who emerges is equally partisan. In November, Roberts pushed back on Trump when the president dismissively referred to a judge who had ruled against his administration as an “Obama judge.” Roberts issued a statement saying: “We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.”
Yet individual judges have sometimes reinforced the notion that they are bent on favoring the president who appointed them. Of equal concern, the current selection process appears patently designed to produce men and women who will do just that.
Tracing the origins of the Trump plan for the federal bench, Hulse recounts McGahn’s early interaction with the candidate. They were introduced by David Bossie, president of the conservative advocacy group Citizens United. Trump inscribed a copy of “The Art of the Deal” to McGahn’s young son, Don III, writing, “You’ve got a great dad.” McGahn then helped draw up Trump’s spring 2016 list of possible Supreme Court nominees, at a time when conservatives wanted a sign that the erratic candidate would take judicial appointments seriously.
Once Trump became president, McConnell and McGahn — allies who abhor campaign finance limits and have sought to dismantle Washington’s regulatory framework — formed an early partnership to place ideological soul mates on the bench. McGahn engineered the appointment of Neil Gorsuch to fill Scalia’s seat on the Supreme Court. In 2018 he managed the resignation of Justice Anthony Kennedy and his replacement by Brett Kavanaugh.
Back in 2008, Kavanaugh, then an appeals court judge, swore in McGahn after his confirmation to the Federal Election Commission. “That guy’s going to be on the Supreme Court someday,” McGahn said privately. Nearly a decade later, in 2017, Hulse writes, McGahn confided to Trump strategist Steve Bannon his continued interest in Kavanaugh as a Supreme Court choice.
During the televised Kavanaugh confirmation hearings last year, McGahn coached the nominee on his response to Christine Blasey Ford’s sexual assault allegation. As Ford testified before senators, Hulse reveals, McGahn received “worried texts from his circle” and then urged Kavanaugh to respond aggressively: “He wanted to see the nominee push back, cut off his interrogators, and turn their questions back on them.” Kavanaugh denied Ford’s allegations dating back to their teen years in suburban Maryland, chalked them up to his partisan critics and challenged senators about their drinking habits after they suggested that he drank to excess as a young man.
For decades, Republicans in Washington, dismayed at the judicial liberalism of the 1960s and 1970s, have made judicial appointments a higher priority than Democrats have. They have taken a focused, unyielding approach to overhauling the bench. There have been exceptions, of course, when Democrats went on the offensive. In 1987 the Democratically controlled Senate rejected Robert Bork, and in 2013 Democratic Senate Majority Leader Harry Reid instigated a change in filibuster rules to win confirmation of stalled Obama nominations. A decade earlier, Reid helped block several nominees of President George W. Bush, including Washington lawyer Miguel Estrada to the prestigious U.S. Court of Appeals for the District of Columbia Circuit.
Yet Republicans such as McConnell have more recently been in control and ready to play hardball, partly as retribution for Bork and Estrada. On Feb. 13, 2016, when Scalia died, McConnell received early word from the Federalist Society’s Leo, a Scalia family friend. When the death became public, McConnell was ready with his statement that an appointment to the seat should be saved for the next president, to be elected in November. On that same Feb. 13, which happened to be the night of a GOP presidential debate in South Carolina, McGahn called Trump to advise him on addressing the vacancy and offering names of possible successors.
Hulse writes of the ensuing angst among some on Obama’s team that the president moved too slowly on a successor. Ron Klain, then chief of staff to Vice President Joe Biden and a veteran of many court fights, wanted the president to quickly name Merrick Garland, chief judge of the D.C. Circuit. The well-regarded moderate’s name had been kept in reserve during Obama’s 2009 and 2010 appointments for just such a moment — in an election year with a Republican Senate.
Within a few days of Scalia’s death, Hulse reports, Klain told White House Chief of Staff Denis McDonough: “The president ought to go to the Rose Garden tomorrow and name Merrick Garland. Tomorrow. Not a month from now. Tomorrow. Every day that ticks by is a day that you are letting McConnell consolidate his position.”
Obama announced the Garland choice a month later, on March 16. Senators never held a hearing.
Money also has become increasingly important in confirmation battles. Conservative advocates have raised millions for their efforts, buying ads to promote candidates and to pressure senators. While Hulse does not explore this development in depth, he does observe that liberals working with the White House were unable to generate the expected financing for a Garland campaign.
Timing and an inside track are crucial for a nominee. Hulse reveals that in June 2018, after Kennedy delivered his retirement letter to Trump, McGahn called Kavanaugh to give him the news and tell him to prepare.
Hulse admires Sen. Susan Collins, a moderate who was decisive in Kavanaugh’s confirmation, calling her “meticulous” and “not one to be intimidated.” His observations regarding whether the Maine Republican’s vote was ever in doubt and her interactions with the Trump team are minimal. McConnell, for his part, promised to make Collins’s reelection a Republican priority.
McConnell has recently said that if a Supreme Court vacancy occurred in 2020, the Senate would confirm a Trump nominee. That would reverse his 2016 election-year stand against Obama. But it would be no surprise.
By Carl Hulse
310 pp. $28.99