if Kavanaugh was to have any hope of confirmation.
CHAPTER FOUR
Mootings, Meetings, and Mobs
Fifty-four votes.
On their way to the first round of meetings with senators, Don McGahn told Kavanaugh that it didn’t matter if he was the best person or most beloved judge ever—he probably wasn’t going to get more than fifty-four votes. When McGahn administered the same reality check to Gorsuch a year earlier, the nominee was taken aback. He had hoped for the backing of as many as seventy-five senators. (In the end, only fifty-four supported him.) Kavanaugh, on the other hand, had already been through one heavily politicized Senate confirmation, and he was keeping his expectations in check.
Kavanaugh’s White House experience made him more realistic about the political process than many other nominees. Partisan votes were part of the ugliness of American politics, but the political environment at the time of his nomination was particularly challenging. Almost any Democrat who voted for him could expect that if a Justice Kavanaugh later angered the Democratic base in an important case, he might well face a primary challenge from the left and lose his Senate seat.
The ceiling for votes may have been fifty-four—all the Republican senators plus three vulnerable moderate Democrats—but the confirmation team also understood that their floor was below fifty. Republicans Lisa Murkowski and Susan Collins were targeted not only by Kavanaugh’s team but by progressives.
Getting those votes lined up began right away with one-on-one meetings with as many senators as possible. Kavanaugh’s first meetings were with Grassley and McConnell the morning after the White House announcement. He and Ashley had stayed up talking until five in the morning, leaving him slightly punchy. He could easily talk at length under normal circumstances, but the lack of sleep made him especially wordy. When they left the meeting with Grassley, McGahn teased him, saying he could tighten up his answers for subsequent meetings. “They don’t need to hear all that,” he advised.
Each meeting was different. Senator Lindsey Graham offered advice, explained the process, and tested him on tough questions he might face during his hearings. Senator Ted Cruz acted out the antics he felt Kavanaugh should be prepared for from Democrats, at one point shouting “Treason!” in a booming theatrical voice so loud it echoed down the hallway. A two-hour meeting with Senator Mike Lee about Kavanaugh’s approach to originalism provided a preview of Lee’s questions in the hearings. These meetings with friendly senators allowed him to address concerns that might be raised in his hearings and to learn about the particular legal interests of the people whose votes he had to earn.
Kavanaugh would have to address Senator Rand Paul’s concern that he was too deferential to the government in Fourth Amendment cases, which deal with the question of unreasonable searches and seizures. Concurring in 2015 with an opinion of his court that affirmed the National Security Agency’s right to collect telephone metadata without a warrant, Kavanaugh wrote that the collection of such data is a “critical national security need” that is “entirely consistent with the Fourth Amendment” and outweighs privacy concerns. Now he attempted to show Senator Paul that he had not ruled for the government in every Fourth Amendment case. In fact, he had developed the constitutional rationale that Justice Scalia adopted in United States v Jones rejecting the use of GPS tracking by the police.1 Kavanaugh also emphasized his work on the separation of powers, which dovetailed nicely with Paul’s concerns on the overgrowth of a constitutionally suspect regulatory state. Paul was not entirely convinced on the Fourth Amendment question, but he recognized that Kavanaugh was on the whole a good pick. He had his vote.
Early in the process, Kavanaugh’s team was not worried about Senator Jeff Flake, but he was one of a few senators, along with his fellow Arizonan John McCain and Robert Corker of Tennessee, whom the White House was worried about because of their antipathy to President Trump. Corker addressed the question head-on, asking why he should reject a good Supreme Court nominee just because he didn’t like the president. He viewed Kavanaugh’s qualifications and his own feelings about Trump as unconnected.
The meeting with Flake went well and offered Kavanaugh a preview of the questions Flake would ask at the hearings about Trump’s use of executive power. But unlike most of his Republican colleagues, Flake declined to meet with the press immediately after their visit. Favorable comments from Republican senators before or after their meetings with the nominee were an important part of