the history of Supreme Court confirmation battles. JCN’s first ad, which began running the day the vacancy was announced, built on the success of the Gorsuch confirmation of the year before. “Like Justice Gorsuch, all of the men and women on President Trump’s judicial list are the best and brightest in their field.” It concluded, “We look forward to President Trump nominating another great justice.”18
In the twelve days between Kennedy’s retirement and Trump’s announcement of his nominee, the major media were focused on the horse race—which candidate was gaining, which was falling behind. But the conservative media were hosting a vibrant debate over the merits of potential nominees, a debate fed by various interest groups concerned about how each candidate might treat their particular issue and by the advocates of each candidate.
Since all of the judges on Trump’s list were highly qualified and had conservative track records, most criticism of particular candidates took place behind the scenes. Everyone was alert to the problem of political primaries, in which the eventual nominee emerges bloodied with another battle ahead of him. All the candidates on the list were at least acceptable, and no one wanted to weaken the eventual nominee’s prospects for confirmation, so the most intense debates were kept behind the scenes. Nevertheless, some individuals and organizations were speaking out, and a few were aiming their fire directly at Kavanaugh.
Conservative media praised Kavanaugh for his approach to administrative law, the body of rules that govern the multitude of federal regulatory and administrative agencies. The average citizen hears little about this arcane and rarely glamorous field of law, but in recent decades, as Congress has delegated to the bureaucracy the real work of governing the United States, administrative law has become enormously consequential for Americans’ rights and freedoms.
Many worried, however, that Kavanaugh had hidden in the tall grass by avoiding controversial social-policy issues. His recent handling of the question of whether a teenager caught entering the United States illegally had a constitutional right to an abortion had not inspired confidence among pro-lifers. His opponents circulated a summary paper criticizing him for seeking “a compromise that would allow [the girl] to obtain her abortion” and for refusing “to take a stand” with another judge who questioned whether such a person even had a constitutional right to abortion. He was also criticized for a dissent that some argued had presumed a compelling government interest in facilitating access to contraception. His decisions on religious liberty, it was said, were not sufficiently bold at a time of increasing encroachment by the government.19
Conservatives worried about more than Kavanaugh’s commitments on social issues. They charged that a dissent from 2011, in which he discussed how a mandate to purchase insurance could pass constitutional muster, amounted to a “roadmap for saving Obamacare.”20
The defining feature of his jurisprudence, critics said, was “avoidance.” Principles were less important to him than his “reputation.” And “nothing” suggested he would “find the courage to embrace conservative principles” on the Supreme Court. There was “no reason to risk it,” an opposition document warned. “There’s a difference between a home run and a grand slam,” opined one writer in National Review.21 These conservatives were not fully opposed to Kavanaugh’s nomination, but having been burned many times before, they feared that he was another establishment Republican who would swing to the left once he was on the Court.
Even people within the White House were concerned, but as they dug deeper into his record, they believed he viewed his role on the circuit court as writing for Justice Kennedy. Kavanaugh understood how Kennedy thought, and even when he disagreed with him, he admired him. He always carried a pocket Constitution signed by Kennedy. Kavanaugh tried to craft a solid, constitutionally correct result that Kennedy would adopt rather than being swayed by the liberal bloc on the court.
Others close to the process were swayed by the weight of his judicial record. No conservative appeals court judge—including even then-Judge Gorsuch—had as many opinions on significant and controversial questions as Kavanaugh, from his defense of First Amendment protections for political speech, to his bold Second Amendment dissent that had garnered repeated citations from Thomas and Scalia, to his pathbreaking separation of powers cases, which had pointed out constitutional infirmities in the structure of several administrative agencies.
Each time a piece expressing concerns was published, an army of former clerks and other surrogates rose in Kavanaugh’s defense, sometimes within minutes. Clerks generally serve a one-year term with a judge after law school, assisting