Senate. When moderate senators whose votes were necessary had been asked for their advice early in the process, they had discouraged choosing her. The White House concluded that the decision not to nominate Barrett had been made by the people of Alabama when they elected a Democrat to the Senate the previous December. Losing that seat meant that the White House had almost no margin for error.
Kethledge was also strongly considered, but he had not written the range of opinions that Kavanaugh had, and some of his opinions worried groups focused on strong immigration laws. Late in the process Trump became interested in Hardiman again, a judge with a history of good opinions, but perceived as lacking Kavanaugh’s depth of reasoning or commitment to originalism. Still, all had excellent opinions. All would be excellent justices.
Vice President Mike Pence interviewed finalists, speaking with Barrett and Kethledge at a family lake house in Indiana and with Hardiman and Kavanaugh at the vice president’s residence in Washington. Pence asked Barrett, a fellow Indianan, who she thought should be nominated if not her. She strongly endorsed Kavanaugh.
Kavanaugh’s interview with the vice president, on Independence Day, was a cordial chat that lasted more than an hour, in part because of the judge’s habit of answering questions thoroughly. In every interview, Kavanaugh wanted to perform well. He did not see himself as a shoo-in, and he knew how many finalists were reported to have stumbled in their meetings with the president and his team. He would not stumble.
Kavanaugh was asked whom he recommended for the seat if not himself, and he praised multiple contenders, including Barrett. The world of federal judges is small, and Kavanaugh knew and respected several of the short-listers. He had become acquainted with Barrett through visits to Notre Dame Law School and discussions about candidates for clerkships. He had even attended her formal installation at the Seventh Circuit earlier that year. Kavanaugh and Kethledge and their wives had sat together at a reunion of Kennedy clerks the previous summer.
President Trump spent the following weekend at his resort in New Jersey, but he continued asking people for advice.27 It may have been Kavanaugh’s race to lose, but losing was a real possibility. In multiple conversations with both formal and informal judicial advisors, the president went back and forth about the decision. McConnell was complaining about documents, and the base was pushing for a more exciting pick. And Kavanaugh was about as pure a specimen of the “Bush” Republican as one could imagine.
Leonard Leo, the executive vice president of the Federalist Society, who had advised Bush and Trump on past Supreme Court nominations, told the president he had an extraordinary group of judges. He should pick whomever he felt most comfortable with and then own the decision. Leo’s advice was carefully considered. The Federalist Society, a powerhouse organization of lawyers, legal academics, judges, and law students, is the cornerstone of today’s conservative legal movement. It champions three core principles: (1) the state exists to preserve freedom; (2) the separation of governmental powers is central to the Constitution; and (3) the judiciary is to say what the law is, not what it should be. Other than that, the Federalist Society takes no policy positions, and robust debate is common and encouraged.
McGahn and Leo had hoped Trump would make his announcement before the weekend, worrying that more time would not improve the decision. Leo found out not only who was golfing with the president that weekend but who was slated to ride in his golf cart each round, and he spoke with two of them—Mike Ferguson, a former congressman from New Jersey, and Sean Hannity of Fox News. He told them that he would not be surprised if they favored a particular candidate but asked them not to speak ill of any of the potential nominees. He also asked them to impress upon the president that he had to own the decision and pick the person with whom he was most comfortable.
Ferguson knew only Barrett, whom he thought the world of, but had a favorable view of the entire list because he respected Leo’s judgment. The president discussed the decision over golf and again that night at a dinner with many members of the Trump and Pence families. As he weighed the pluses and minuses of each candidate, Trump came to the conclusion that Kavanaugh would be among the safer choices.
The evening before, the New York Times published what amounted to a plea from McConnell to