‘They Were Growing Seedlings…Which Would Sprout To Become Supreme Court Justices’

Ruth Marcus discusses the Federalist Society’s 30-year Justice-grooming project, the botched investigations, and everything else that brought us “too big to fail” Brett Kavanaugh.

Hope Reese | Longreads | December 2019 | 17 minutes (4,511 words)

 

When Donald Trump was running for President in 2016, he had a problem: many conservatives weren’t convinced that he would be conservative enough. He had changed party affiliations five times, only committing himself –– albeit, loosely –– as a Republican in 2012. He had even supported gay marriage.

“Evangelicals and social conservatives didn’t trust him,” Ruth Marcus, Washington Post editor and columnist told me.

Marcus, whose book Supreme Ambition: Brett Kavanaugh and the Conservative Takeover details the intricate process whereby Republicans cemented a conservative Supreme Court, points to Trump’s “innovation” –– a public list, unprecedented, of Supreme Court justices he would choose from –– as the key to Trump’s victory.

The point was to “tell social conservatives that notwithstanding their taste for a thrice-married, once-Democratic New Yorker, they could trust him to fill the Supreme Court with reliable conservatives,” Marcus says.

In Supreme Ambition, Marcus, who writes an op-ed column for the Post and was a Pulitzer finalist in 2007 for Commentary, offers a thorough look at how Kavanaugh made it onto the list –– he wasn’t originally there –– through a strong support network, and the messy hearings that ensued after Christine Blasey Ford came forward with allegations of sexual assault. Marcus is particularly critical of Congress’s handling of the situation –– the refusal to pursue leads, the botched FBI investigation, and the political concerns that infected the nomination process.

Marcus tells me that once the allegations emerged, it “changed everything” for her –– she does not believe he should have been confirmed. Still, though she won’t be happy with most of his decisions, she does not see a case for his impeachment, which some have argued for.

“If you want to impeach somebody, start with Justice Thomas,” Marcus told me. “But nobodys talking about doing that.”

I spoke with Marcus over the phone in the last week of November; she was calling from her office at the Washington Post. This interview has been edited for length and clarity.

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Hope Reese: During his campaign, Trump publicly released a list of his Supreme Court picks. Why didn’t Kavanaugh make Trump’s list –– first or second round? It took a big effort to finally get his name on it.

Ruth Marcus: It boiled down to: Brett Kavanaugh was a creature of the Washington swamp that Trump had run against. And he was also a creature of the Republican establishment. And in particular, he was not only a former lawyer for president George W. Bush, but he had literally married president Bushs secretary. So he was almost like an honorary member of the Bush family.

So he was precisely not the kind of guy that candidate Trump was comfortable promoting. And at the same time, some social conservatives had doubts about whether he would be a reliable enough conservative, which is why he was not on Leonard Leos [co-chair of the Federalist Society] original list. So that left him with a problem when, to everyones shock, Trump was elected president. He had at least one Supreme Court pick. And then the second one was Justice Kennedys announcement, and he had promised to pick only from his list. And, lo and behold, Kavanaugh was not on his list.

How much of a factor is the Supreme Court with voters? Do most people think about it when they go to vote?

Some people take it super seriously –– those people are the socially-conservative and evangelical voters who are part of the Republican base. And some people, Democratic, liberal voters, I don’t think take it seriously enough. But if you look at the exit polls, its clear that Republican voters leading the polls, in particular evangelical voters, identified the future of the Supreme Court as the motivating factor in their decision-making. And that was why President Trump, correctly, credits coming up with the list and publicizing it as a key to Trump being elected.

Your book focuses on Kavanaugh, because he embodies the pinnacle of the 30-year fight to make the Supreme Court more conservative. Can you talk briefly about the trajectory of this?

In 1987, Judge Robert Bork, who sat on the DC circuit that Kavanaugh later served on, was the first originalist judge nominated to the Supreme Court. And though the Court was much less conservative than it is now, the Bork nomination and Bork’s philosophy became this flashpoint for conservatives and liberals. And he was ultimately defeated. For the first time, we were debating whether or not nominees’ judicial philosophy was legitimate to take into account –– which is taken as accepted reason now.

Eventually, Anthony Kennedy, another appeals court judge, was named to take his place. That created a much less conservative, much more moderate court than if Bork had been named.

And then they flubbed along the way. Sandra Day OConnor was a disappointment to conservatives. Justice Kennedy was, to some extent, a disappointment to conservatives. David Souter, named Bobby George H.W. Bush, was a huge disappointment to conservatives. So they watched their chance to cement the conservative majority elude them for decades –– through defeats like Bork and through mistakes of their own making. And they became increasingly convinced that what they needed to do was create a mechanism through credentializing and putting conservative young lawyers on the federal courts so that they could develop records –– they could be trusted, they could be tested. This was done through the offices of the Federalist Society.

When the opportunity to get the fifth justice conservative justice came their way, when Justice Kennedy retired, they had pretty much perfected the mechanism for making certain that they were going to get a reliable conservative on the bench.

The Federalist Society, as you mention, is hugely important in getting conservatives on the Supreme Court. Can you talk more about this? Is there any corollary for Democrats?

The Federalist Society was created in 1982 by a group of conservative law students. This was at a time when conservatives were almost ridiculed on law school campuses, where the notion of using the original intentions of the framers to make decisions was seen as laughable, almost wacko, method of constitutional interpretation. But over the years, the Federalist Society managed to transform itself into the kind of employment agency for smart conservative lawyers, including Kavanaugh –– placing them in Republican administrations and then placing them into an appeals district court and appeals court positions. They were growing seedlings, some of which would sprout to become Supreme Court justices and some of which would become appeals court justices, and some of which would go into private practice. This was a very concerted and extremely successful effort on the part of the Federalist Society.

There is no Democratic analog to this. There are some efforts, through groups like Demand Justice, which arose right before the Kennedy vacancy and the Kavanaugh nomination, to make this more organized and effective on the Democratic side. But Democrats have had different goals when Democratic presidents have had the opportunity to stock the judiciary. They havent worried about ideological purity, or even been that focused on having liberals and people really to the left end of the spectrum to counterbalance the conservatives that Republican presidents have been nominating. They worry about issues like diversity –– gender diversity, racial diversity, and just as their voters have been less focused on the importance of the courts as an electoral matter, Democratic presidents have tended to be less focused on the ideological aspect of their nominees as they are filling the court.

Even though Kavanaugh was not an easy sell for the White House … they got excited about Kavanaugh when he got into trouble.

A primary goal of the Federalist Society is to fill the Court with justices who are anti-regulation –– even over their views on abortion, gun control, and other hot-button issues (recently, Kavanaugh indicated that he is on board with an anti-regulation agenda.) Why is this?

Different aspects of the Republican coalition have different priorities in judicial selection. There was a 12-day period I call the “invisible primary” between Kennedys announcement at his retirement and cabinet selection, where there was this remarkable and concerted social conservative push to defeat Kavanaugh, because they were worried about whether he would be reliable enough and aggressive enough on issues like abortion. But increasingly for the Federalist Society, and certainly for Don McGahn, the White House Counsel, questions about what Bannon called “the deconstruction of the administrative state” have come front and center in the last number of years.

Kavanaugh, coming from the DC circuit, which handles the overwhelming amount of cases involving agency regulation, was viewed from that point of view as a very reliable jurist, in terms of making sure that administrative agencies wouldnt be able to run amok. He’s worried about administrative agencies that aren’t answerable to the President. Hes worried about administrative agencies that get undue preference from judges who are reviewing regulations, and he is worried about administrative agencies that are doing legislative business and going beyond where Congress has authorized them to go. So he was the perfect choice for that part of the Federalist Society.

Even before Ford came forward with her allegations, Kavanaugh was unpopular –– only 37 percent of Americans supported his confirmation. Why did Republicans in Congress fight so strongly for him?

It goes back to Bork. The lessons of the Bork fight, and wounds of the Bork fight, are still felt strongly among conservative and Republican Senators. Republicans, in the aftermath of Bork, made the decision that they were not going to allow that to happen again –– they were not going to allow another one of their nominees to be defeated. The irony of Kavanaugh is that he was sold to the President and others as a nominee that was not going to be “Borked,” because he had the credentials and background to allow him to get through the Senate.

Even though Kavanaugh was not an easy sell for the White House –– hes son of a lobbyists, he doesnt have a rags-to-riches story, doesnt have any kind of great narrative, except that he was a very well-credentialed nominee –– they got excited about Kavanaugh when he got into trouble, at which point the base rallied around him to an enormous degree. But it was based on a fight to get 50 votes –– Vice President Pence could assemble the 51st vote, break the tie.

The Republican base was not terribly worked up in favor of Kavanaugh, and wasnt rallying to his defense until he came under attack with the Ford allegation. The liberal base was not worked up in any way that was similar to the agitation that greeted the Bork nomination. So it was fine for Kavanaugh to be reasonably less-than-normally-popular for a Supreme Court nominee. And he was always going to not sail through, but get through –– until the Ford allegations arose.

You write about missteps in handling the Christine Blasey Ford letter. In particular, how Diane Feinstein was so slow to bring it to light. It was a complicated situation, but what happened there, and what could have been done differently?

She was in a very difficult situation, because Ford was asking for anonymity. She was reluctant, to put it mildly, about coming forward. At the same time, the Feinstein office believed that she would eventually, on her own, come forward.

That said, one lesson of the Clarence Thomas, Anita Hill experience is that information that explosive is going to leak. Anybody who understood how many people Ford had already told about this allegation, and how many people they have likely told, should have understood that this had a very high probability of leaking, and counseled Ford accordingly.

It was a remarkable mistake for Senator Feinstein to make the decision on her own, as the ranking member of the Senate judiciary committee, to decide that she was going to keep Ford’s information confidential. When you get an allegation that explosive, you have a responsibility to your colleagues to discuss with trusted members of the Senate leadership, on the Democratic side, how to handle it.

Her colleagues were furious when they discovered that Feinstein had this information, sat on it, had not discussed what the best handling of it was. So while I acknowledged that Feinstein was in an exquisitely difficult situation, it was a very bad outcome.

And once the information came to light, the FBI began an investigation, which turned out to be a really botched effort.

The most troubling aspect of the confirmation process was the inadequacy, I call it a “dereliction of duty,” of the FBI investigation. And, yes, this links up with the failure to deal with this allegation before the 11th hour, when it was pretty much certain to come out. But even given the last-minute nature of the timing, the FBI did not do its job. It did not do its job because the White House instructed it to interview only the people that wavering Republican Senators insisted on interviewing. And that was completely inadequate to the task. This is a joint failure of the Senate, the administration and the FBI.

The particular failure was to fail to interview a man named Max Stier. Stier is the head of a public interest group called the partnership for public service, which, ironically, works on good government issues. And he told people that he had witnessed Kavanaugh as a freshman at Yale, exposing himself to another woman. There was a woman named Debbie Ramirez who recalled Kavanaugh exposing himself to her at a college party. Max Stier had seen a similar incident with another woman, who has told people she doesnt recall the incident. But Max Stier does. And he was desperate to get this information to the FBI. He enlisted lawyers who had good FBI contacts to try to get any information to the FBI, to no avail.

Then he went to Chris Coons, the Democratic Senator from Delaware, who he also knew from his good government work, to try to get help. Coons wrote a letter to the FBI director, Christopher Wray –– Coons and Wray were law school classmates –– effectively begging Wray to focus on Stier as a witness with relevant information. The FBI never did that.

By the way, that letter was CCd to the chairman of the Senate Judiciary Committee, Chuck Grassley of Iowa, and the ranking member Diane Feinstein –– but they did not say, “Hey, who is this Max Stier guy? Why have we not heard from him? Why doesnt somebody interview him? Hes got relevant information.” And finally, increasingly desperate, Coons reached out to the wavering Republican Senators hed been working with to get the FBI investigation going. He reached out to Jeff Flake who said, “I cant deal with this. My family is receiving death threats cause Ive been pressing for this FBI investigation.” Its sort of a comedy-of-errors situation. Coons reached Senator Collins by email, but she had changed her email. So she did not receive it.

So this person with information that was highly relevant to the investigation was never questioned. And that was just appalling.


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Why did the FBI ignore the leads? Was it pressured by the White House?

What the FBI would tell you is that doing a background investigation is different from doing a criminal investigation. When youre doing a background investigation your client is the White House, and that they were doing only what the White House Counsel was instructing them to do. But theres no evidence that the FBI director said, Hey, we cant look like fools here. We need to take this seriously and this is an important lead and we really need to do this. They were simply following orders, and the White House’s interest in this was not getting to the truth –– it was getting to 50 votes. McGahn was going to do whatever it took to get Kavanaugh across the finish line.

So is the White House ultimately responsible for the failure of the investigation?

Well, the White House didnt want to have an FBI investigation. It didnt want to have a hearing. I mean, if it had been up to the Senate majority leader, the chairman of the Senate Judiciary committee and the White House, there would not have been a public hearing at all. Wed have not heard from Ford. That was only done because they understood they needed to do that to satisfy Senators who would not provide the majority for Kavanaugh if that werent held. And they resisted the FBI investigation until Jeff Flake insisted on it after the hearing. And so when that happened, they only were going to do the small amount that it took to satisfy Jeff Flake, Susan Collins and Lisa Murkowski –– and not a bit more. So yes, the White House is responsible for the botched investigation. But there are other responsible players as well. Where was the Senate in exercising its advice and consent responsibility? Where was Senator Grassley? Where was Senator Feinstein who was CCd on this letter? Why was she not saying, “Hey, wait a second, whats going on here?” Where was the FBI in terms of behaving in a way that lives up to its professional duty? Theres a lot of bad actors there.

Why didn’t Trump pull his nomination after the allegations? Wouldn’t it have been easier to pick someone else?

It definitely occurred to various people, including president Trump, including Ivanka Trump, who was encouraging him to pull the nomination. And at one point, Leo was arguing to pull the nomination. But the wisdom, and I think it was the correct wisdom, was that that couldnt be done, because if the Kavanaugh nomination was pulled at that point, there wasnt going to be time to get another nominee confirmed before the election. At that point, there was a prospect of losing the Senate. Republicans who saw a nominee go down were going to be demoralized. So pulling the nomination was going to increase the chances of losing the Senate and losing the Supreme Court and eventually potentially losing the White House. Everybody was determined that that was not going to happen. Mike Davis, Chuck Grassleys lead nominations counsel, just told me on the record: “Kavanaugh was too big to fail.” He needed to be confirmed.

Congress has become hyper-partisan in recent years. Is the Supreme Court equally partisan?

Well, thats to be determined. The justices would tell you that they do not think of themselves as Republican justices or Democratic justices, but the reality is that there are now –– and this is very unusual in the courts history –– five conservative justices that have been nominated by Republican presidents and four justices who are liberal nominated by Democratic presidents. So there is this partisan divide built in. Its actually rather unusual for the court, in part because previous nominees have been more fluid in terms of crossing ideological boundaries.

This term, in particular, is going to tell us a lot about how partisan, and ideological, this new conservative majority is going to turn out to be. Whether they restrain themselves and dont do too much too fast, or whether they are chomping at the bit to put their ideology into practice. We have cases about abortion, gun rights, legal protections for gay, lesbian, transgender people, and agency power racked up in the impeachment process and the related litigation over getting access to information and testimony. The chief justice would like to ensure that the court does not appear to be a partisan institution. But I think this is very much a court that is on the brink of revealing itself to be an extremely ideologically conservative institution, and that is going to inevitably raise questions about its partisanship.

As you mentioned earlier, the investigation was not a criminal investigation, it was a background investigation. So what should the Senators have based the decision on?

I have a bit of an unusual perspective here. I thought that Judge Bork was outside the mainstream ideologically and his views on constitutional issues were way too extreme. But I thought that Kavanaugh was run-of-the-mill, ordinary, potentially chosen by a president Jeb Bush or a president Marco Rubio, nominee. I was actually relieved when he was chosen, because I thought there were way more extreme people that president Trump could have chosen, and way less-credentialed people that Trump could have chosen.

Most Democratic Senators, still smarting over losing the Scalia seat from Merrick Garland, and understandably so, and concerned about the conservative tilt of the court, and understandably so, were ready to vote against Kavanaugh on the merits.

But in my imaginary role as a Senator, I would not have seen a basis for opposing Kavanaugh –– before the Christine Blasey Ford allegations. They changed everything. I spent a lot of time with her. I spent a lot of time with Debbie Ramirez. I believe their stories. I know Stier and his accounts give additional credibility to Debbie Ramirezs story. So that was an issue for me. And fundamentally, I thought that Kavanaughs intemperate and partisan performance on the day of the hearing, where he lashed out about that political enemies and the Clintons, was really unbefitting a justice. As Lisa Murkowski said, that was disqualifying.

During the Clarence Thomas hearings where Robert Byrd, the Democratic Senator from West Virginia, said, Look, I was prepared to vote for Clarence Thomas. Then this came up. We cant be absolutely certain about what happened between Clarence Thomas and Anita Hill, but if theres the benefit of the doubt, it should go to the court and the country. Thats what I think should have happened here.

Mike Davis, Chuck Grassleys lead nominations counsel, just told me on the record: Kavanaugh was too big to fail.

You describe Kavanaugh as someone whose ideology wasn’t strong in the beginning, but was molded by others –– who primarily wanted to please his bosses. What does that mean for him as a justice?

Kavanaugh was not particularly interested or involved in politics in college. He was vaguely understood in law school to be conservative but not one of the more flagrant, well-known, hotheaded conservatives on campus. The faculty head of the Federalist Society at the time doesnt even remember him being a member of the Federalist Society. But it turned out that being a conservative lawyer was a fantastic ticket to prominence and success in the Republican legal community. When Kavanaugh decided to work for Kenneth Starr when he was the independent counsel investigating Bill Clinton, some of his friends were really surprised that he decided to turn himself into a conservative warrior. And they did wonder about the degree to which this conservatism was a matter of conviction on his part and whether it was a matter of convenience. While theres no doubt that Kavanaugh is conservative, its also true that being conservative was a fantastic way to generate really intellectual and powerful mentors throughout his career. From Justice Kennedy, who encouraged the president to put him on the Supreme Court list, to Starr, who was an early mentor, both at the solicitor Generals office and then when he was investigating Clinton, to George W. Bush, who when he wrote Kavanaugh a note when he got on the appeals court and said, maybe someday therell be something bigger in your future. He was really able to leverage these mentors and connections in order to achieve this ambition.

Senator Collins, from Maine, was one of the swing votes, who eventually supported Kavanaugh. How much was she thinking about her re-election?

Its a really interesting question about whether Susan Collins’ vote on Kavanaugh is going to hurt her or help her in 2020. There was a moment after she voted for Justice Kavanaugh when her colleagues gathered around her on the Senate floor. She said, now theyre going to really come after me. And Senator Lindsey Graham from South Carolina said, dont you worry, were going to get Sheldon Adelson to be the finance chair of your campaign.

She produced for the Republican party when they needed her vote, and they will come to her defense.

If she hadnt voted for Kavanaugh, she wouldve faced a divisive and potentially fatal primary. But its also clear that in a general election, that Senate race has been moved from leaning Republican to a toss-up, I think largely because of the impact of Kavanaugh.

If youre Susan Collins, you are always in a difficult position within your party. And it is hard to always be the one who is breaking from them.Theres an enormous amount of peer pressure involved in that. At one point ads against her played at one of the Republican caucus lunches. She said, you know, for the rest of you, this is a really easy vote. And for me its really hard.

What do you see for the future of the Supreme Court? How do you think Kavanaugh and the conservative contingent will approach upcoming cases?

We have one term to judge from. We will know a lot more in June about how Kavanaugh will exercise his vote. For now, Gorsuch is a significantly more conservative justice. Kavanaugh has aligned himself slightly to the right of the chief justice, who, on a few key votes, sided with the liberal wing of the court.

Kavanaugh and the chief justice are friends from way back. Kavanaugh helped the chief justice get confirmed to the DC circuit and very much respects him. He is going to want to hew pretty closely to where Justice Roberts is. But when were talking about these divisions between a conservative Justice Gorsuch and a conservative Chief Justice Roberts, these are all really seriously conservative justices. The only question is how much do they want to revolutionize and change where the court has been, and how quickly do they want to do that?

What are you personally worried about?

Everything! The desire is to change the state of the law without being explicit about that. I dont worry that Roe is going to be explicitly overruled as much as I worry that the states are going to get more and more leeway to enact restrictive abortion laws that will, to be blunt, allow wealthier women to have access to abortion and to make all but impossible for lower income women to have access to abortion.

I’m worried about the case being argued as were speaking [as of today the case is undecided and appears like it may be dismissed] because the Court has not actively declared that there was an individual right to bear arms and has stayed away from explaining what that means for how far States and localities can go in enacting restrictions on access to guns. Im very worried about cases involving agency power and executive power –– those are issues that tend to make people nod off, but theyre really critical in terms of determining whether government can be effective in having robust environmental regulations, robust regulation of financial institutions.

All sorts of things our government has been doing since the New Deal could be up for grabs, depending on how far the Court wants to go.

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Hope Reese is a journalist based in Louisville, KY. Her work has been featured in The Atlantic, the Los Angeles Review of Books, the Village VoiceVox, and other publications.

Editor: Dana Snitzky