McGahn felt strongly that it needed to be the president’s decision. After Trump chose Gorsuch, the confirmation process ran like clockwork, culminating in his confirmation on the target date of April 7, which McGahn had set back in December, before Trump even took office.
Two months later, Leo and McGahn talked to the president about refreshing the list. They mentioned Kavanaugh’s name again. Clement, the other popular D.C. figure left off the first lists, was also discussed. But as Clement had never been a judge—and reportedly wasn’t interested in a lower-court position—he had no demonstrable record of how he would perform on the bench.
It was a tumultuous summer at the White House. Priebus was fired as chief of staff and there were riots in Charlottesville. Leo and Trump met for dinner in September and talked more about judicial confirmations. An updated list was assembled in October and early November, and released on November 17 in the middle of the Federalist Society’s annual lawyers’ convention in D.C. The list now included four newly confirmed judges: Amy Coney Barrett of Indiana, Kevin Newsom of Alabama, Britt Grant of Georgia, and Patrick Wyrick of Oklahoma. And—raising the eyebrows of everyone who knew what his inclusion signaled—Brett Kavanaugh.
CHAPTER THREE
Complicit in Evil
“These things are won or lost in the first forty-eight hours,” Kavanaugh would always tell his students when he taught about judicial confirmations in his Supreme Court and Separation of Powers class. He had learned this from reading the history of confirmation battles, but also from his experience at the White House. President George W. Bush announced his nomination of John Roberts to the Supreme Court in a prime-time televised address, making a compelling case for the judge’s qualifications. Democratic senators said they’d keep an open mind. The harshest criticism in the wake of the announcement was an attack in the Washington Post on the seersucker suit worn by Roberts’s young son, a tasteless jab that simply increased sympathy for the Roberts family.1 He was confirmed by a vote of seventy-eight to twenty-two.
By contrast, Harriet Miers’s nomination was probably lost in the first ten minutes. President Bush asked conservatives to trust him when he nominated his White House counsel, who had no experience as a judge. “I’ve known Harriet for more than a decade. I know her heart. I know her character,” Bush said.2 Democratic senator Harry Reid praised her, but by sidestepping the conservative legal movement, the president forfeited the confidence of the individuals and organizations whose support he needed, and the ill-considered nomination was quickly withdrawn. And most famously, Judge Bork’s nomination was defined by Senator Kennedy’s brutally unfair “Robert Bork’s America” speech, delivered within minutes of the announcement.
As he had done with the Gorsuch nomination the previous year, President Trump announced his selection of Kavanaugh in a prime-time speech delivered to an audience in the East Room of the White House. Trump thanked Justice Kennedy, who was in Europe, for his “incredible passion and devotion” and “lifetime of distinguished service.” He praised Kavanaugh as a “judge’s judge,” a “brilliant jurist, with a clear and effective writing style, universally regarded as one of the finest and sharpest legal minds of our time.”3
Trump, always conscious of stagecraft, had been keen to have Ashley Kavanaugh and her daughters, ten-year-old Liza and twelve-year-old Margaret, next to the judge for the announcement. Both girls handled the nationally televised event well. They’d been told to treat it as if they were at the front of the gym on awards night at Blessed Sacrament School. If they got scared at all, they were to look over at MarMar, their grandmother, in the front row. Ashley had spent years in the White House, and she enjoyed the reunion with the permanent staff, including photographers she’d met during the Bush administration.
Liza, giving her father a low five, seemed perfectly at ease. Earlier in the evening, she’d comfortably chatted with President and Mrs. Trump. At his confirmation hearings a few months later, Kavanaugh joked that she called this her “television debut.”
Part of the stagecraft was keeping the identity of the nominee a surprise. Kavanaugh knew not to tell anyone that Trump had chosen him, and he didn’t. Not even Ashley, though he did tell her it looked “good” following the meeting at the White House the previous evening. The clerks noted that he returned to his chambers several hours late and in his suit and seemed particularly focused on finishing his speech, but he didn’t say a word about it to them.