Kennedy requested a private moment with President Trump to deliver a message about the next Supreme Court opening, Marcus reports. Kennedy told Trump he should consider another of his former clerks, Brett M. Kavanaugh, who was not on the president’s first two lists of candidates.
“The justice’s message to the president was as consequential as it was straightforward, and it was a remarkable insertion by a sitting justice into the distinctly presidential act of judge picking,” Marcus writes in “Supreme Ambition: Brett Kavanaugh and the Conservative Takeover.”
Kennedy announced his retirement 14 months later, after Kavanaugh’s name indeed had been added to Trump’s public list of potential Supreme Court picks. But if the octogenarian Kennedy was envisioning an orderly succession, what the nation got instead was one of the most wrenching, contentious and closest Supreme Court confirmation battles in history.
Kavanaugh’s career-long ambition was nearly derailed by allegations from California professor Christine Blasey Ford that a drunken teenage Kavanaugh had assaulted her at a party in the Washington suburb where both grew up. There were additional reports about Kavanaugh drinking to excess while a student at Yale and exposing himself.
Kavanaugh vehemently denied the accusations and said they were part of a hit job orchestrated by Democrats and liberals desperate to sink his nomination and keep the court from having a conservative majority.
Marcus’s book, to be published Dec. 3, is at least the fifth to examine Kavanaugh’s nomination and confirmation. It does not attempt to prove or undermine the allegations against him, although she interviewed Ford and Debbie Ramirez, a contemporary of Kavanaugh’s at Yale, who said he exposed himself to her at a drunken party. Kavanaugh is not quoted in the book, and Marcus does not write that she talked to him.
“Supreme Ambition” is more focused on the opening conservatives saw in a Kennedy retirement, and the opportunity it presented for locking in a right-leaning majority on the Supreme Court that could last generations.
The Trump administration got good news on that front just days after the inauguration, Marcus writes. White House adviser Kellyanne Conway reported to Trump and her colleagues that she had spoken with Kennedy’s son Gregory Kennedy at the annual white-tie Alfalfa Club dinner.
No one was happier about the outcome of the election than his father, Gregory Kennedy said, according to the book. Anthony Kennedy had been nominated by President Ronald Reagan in 1987, and Marcus writes he wanted to be replaced by another Republican.
“That’s good to know,” Conway replied, according to the book. “That happiness has consequences.” (In a footnote, Marcus says that Gregory Kennedy denied in an email this summer that he talked to Conway that night about his father.)
Trump came into office with one Supreme Court vacancy to fill. Justice Antonin Scalia died unexpectedly in February 2016, and Senate Majority Leader Mitch McConnell (R-Ky.) had blocked the body from considering the replacement that President Barack Obama had nominated — Judge Merrick Garland, who happened to be Kavanaugh’s senior colleague on the U.S. Court of Appeals for the D.C. Circuit.
Trump’s choice of Gorsuch, a respected judge on the U.S. Court of Appeals for the 10th Circuit in Denver, for the Scalia seat was widely interpreted as a sign Trump’s unorthodox governing practices did not extend to judicial selections, and might put Kennedy at ease.
After Kennedy’s recommendation of Kavanaugh to the president, Donald McGahn, then White House counsel, made sure the then-52-year-old judge’s name was added to the public list of candidates from which Trump had vowed to make any selection.
When Kennedy met with Trump on June 28, 2018, to say he was retiring, Kennedy suggested Kavanaugh as his replacement, Marcus reports, although she says there are conflicting reports from those familiar with the meeting as to whether he also mentioned another former clerk, Judge Raymond Kethledge.
McGahn, the architect of Trump’s successful efforts to transform the federal judiciary, was Kavanaugh’s most aggressive advocate, according to the book. President George W. Bush, for whom Kavanaugh had served in various positions, was an important behind-the-scenes supporter.
Although his endorsement might boomerang with Trump, Marcus says Bush told his presidential library to spend whatever it took to produce the papers relating to Kavanaugh’s work in the White House; the research price tag ran into the millions of dollars.
She writes that a “delegation” of former Kavanaugh clerks made a presentation to the influential Leonard A. Leo of the Federalist Society to try to persuade him that Kavanaugh was sufficiently conservative.
Still, the nomination was not in the bag. Leo continued to advocate for a more conservative candidate, although his well-publicized role in the process annoyed Trump, the book says. “That [expletive] Leonard Leo yapping his mouth,” the book quotes Trump as telling an adviser after seeing Leo on television. “Everybody should just keep quiet. I make the decisions here.”
Another Kavanaugh detractor was Michael Davis, the chief counsel to Senate Judiciary Committee Chairman Charles E. Grassley (R-Iowa), who has since gone on to establish an advocacy group for Trump judicial nominees.
Davis pronounced Kavanaugh “too Bushie, too swampy, too Chiefy” — a reference to Kavanaugh’s ties to the Washington establishment and Chief Justice John G. Roberts Jr., Marcus writes.
But Kavanaugh had plenty of friends. Senate Democratic Leader Charles E. Schumer (D-N.Y.) did not mean it as a compliment when he once called Kavanaugh the “Zelig of young Republican lawyers” who had found himself “at the center of so many high-profile, controversial issues in his short career, from the notorious Starr Report to the Florida recount, to [Bush’s] secrecy and privilege claims, to post-9/11 legislative battles . . . to controversial judicial nominations.”
Marcus writes that Kavanaugh put those connections to work. She quotes an anonymous White House official as saying he “had the most intense lobbying campaign inside and outside the White House. He had the biggest batch of fierce defenders I’ve ever seen in any kind of political fight in my life.”
'Too big to fail'
He would need them after Ford’s allegations came to light. Marcus reports that the president’s daughter Ivanka Trump and son-in-law Jared Kushner advocated finding another candidate, as did Leo.
McGahn was adamant about sticking with Kavanaugh; Marcus writes that he refused to take Trump’s calls after Ford’s testimony to the Judiciary Committee for fear the president wanted to pull the plug on the nomination before Kavanaugh could deliver what turned out to be a white-hot response.
Davis, the onetime Kavanaugh doubter, also saw no choice but to fight. Marcus said he argued to wavering Republican senators: “He’s too big to fail at this point. If he fails, we lose the Senate, Trump loses reelection, we lose the Supreme Court, we lose the country.”
Some of the Kavanaugh books have pointed out that those who Ford has named as being at the party where the assault occurred have disputed her recollections or said they have no memory of the event, as does Marcus.
Marcus says that on the morning after the confirmation vote, Kavanaugh’s father received an email from Ford’s father — they are country club friends — saying he was glad the vote had gone Kavanaugh’s way.
Marcus is sharply critical of the last-minute FBI inquiry launched at the insistence of wavering Republican senators, which she said could have provided more answers.
Although Trump had declared the FBI would have “free rein” to investigate, McGahn imposed strict limitations, Marcus writes.
“The FBI did not have free rein, far from it,” she writes. “McGahn set the narrow parameters of the investigation. He would authorize the FBI to do only what the Republican senators asked for and no more.”
She picks up on the revelation from another book, “The Education of Brett Kavanaugh,” by New York Times reporters Robin Pogrebin and Kate Kelly, that there was an allegation of a second episode at Yale.
It involved a report that a Yale classmate was prepared to tell the FBI that he had seen a drunken Kavanaugh with his pants down and his friends pushing his penis into the hands of a similarly inebriated young woman.
That might have been seen as corroboration of Rameriz’s story, Marcus writes, but there was a significant problem: The woman allegedly involved “had told friends she didn’t recall any such incident and she refused to speak with reporters chasing the story.”
Still, Kavanaugh’s classmate Max Stier, now head of a bipartisan Washington nonprofit, was prepared to tell the FBI that he had witnessed the event, but he could not break through. Sen. Christopher A. Coons (D-Del.), to whom Stier confided, was similarly frustrated in connecting Stier and the FBI. (Marcus writes that Stier had a Supreme Court clerkship the year after Kavanaugh’s and that he litigated against Kavanaugh when Stier’s law firm “was representing the Clintons and Kavanaugh was working for Starr,” a reference to former independent counsel Kenneth Starr.)
As the vote approached, Coons tried to send the information about Stier to his colleague Susan Collins, the Republican from Maine who was on the fence about supporting Kavanaugh. But Collins was so deluged that she had opened a new email account, and Coons’s message had gone to her old one. She did not discover it until Marcus asked her about it when researching the book.
But Collins also indicated it would not have made a difference with her. “If the person who allegedly is harmed has no memory of the incident, then I don’t know how you can evaluate the memory of a bystander,” she said.
Marcus concluded in the book that she doubts further fact-finding will be productive, or that liberal calls for perjury investigations of Kavanaugh or impeachment proceedings would succeed.
“The country has lived with the results of badly run or tainted elections,” she writes. “For the same reasons, it has to endure the consequences of a flawed confirmation process.”