Chapter One: The Missing Man CHAPTER ONE The Missing Man
In the summer of 2016, Brett Kavanaugh was celebrating his tenth year on the bench, and his growing ranks of law clerks had gathered for a reunion. This one, held in June at the Chevy Chase Club, not far from Kavanaugh’s home, came at an odd, even awkward moment, with Donald Trump about to claim the Republican nomination. Some of the clerks were Democrats, and though more were Republicans, few if any were Trump Republicans. All of them, it is safe to say, had been astonished a few weeks earlier when Trump released a list of eleven potential Supreme Court nominees that was notable for the name it did not include: Brett Kavanaugh. By this stage in his career, Kavanaugh was an obvious if not leading choice for any Republican president or presidential contender. He had been on Mitt Romney’s short list for the Supreme Court during the 2012 campaign and no doubt would have been at the top of the roster for any of the establishment GOP candidates in 2016, such as Jeb Bush and Marco Rubio, except that they had long before fallen to Trump.
Still, at that point the prospect of the blowhard New York reality television star actually winning the presidency seemed fanciful. So when Travis Lenkner, an early Kavanaugh clerk who was serving as master of ceremonies for the event, referred to Trump’s glaring omission, it was more in the nature of gentle joshing than painful jab. Here’s to Judge Kavanaugh, he toasted—the twelfth man on Trump’s eleven-person list.
Trump had been toying with the notion of that list for months before the plan became public. Before the Iowa caucuses, when New Jersey governor Chris Christie, at the time a Trump rival but also a friend of long standing, asked Trump how he was going to manage the problem of attracting evangelicals, Trump threw out a suggestion: what about getting the Federalist Society to produce a list for him? Good idea, Christie responded; you should talk to Leonard Leo. Trump wasn’t going to secure the nomination, he figured, so offering Trump advice was like giving away snow in winter.
Ted Cruz, the conservative senator from Texas, came in first in the Iowa caucuses on February 1, thanks in large part to his support among evangelicals, the very constituency that Christie had identified as a Trump vulnerability. Trump won the New Hampshire primary eight days later. Then came the event that upended the campaign—and, as it played out, helped catapult Trump to victory. Don McGahn, the Trump campaign’s general counsel and, in his spare time, guitar player for a rock-and-roll cover band, was on his way to a gig that Saturday afternoon when he received a text from his wife: “Scalia died.”1
McGahn pulled to the side of the road to collect his thoughts. There was a primary in South Carolina that night, and the candidate needed to be prepared for questions on this new front.
Scalia’s death generated an instantaneous miniversion of the Trump list—and the first inkling that Kavanaugh might have a problem making it. As Trump did his once-over-lightly form of debate prep later that day—forty-five minutes in a room with key advisers as well as others who called in—McGahn pressed the point: the candidate couldn’t simply rely on a generic pledge to name a justice in the Scalia mold. That wouldn’t be convincing, not from Trump. Voters listening to the debate wouldn’t have any worries about Cruz filling Scalia’s seat, McGahn argued. Trump, on the other hand, was an unknown, and untrusted, quantity. He had been, not so long ago, in favor of abortion rights and a ban on assault weapons. He needed to back up his promises with some specifics. So that evening, when moderator John Dickerson of CBS raised Scalia’s death as the first question of the debate, Trump not only echoed McConnell in calling for “delay, delay, delay” until a new president could be elected, he also took the unusual step of volunteering names of those he would consider for the vacancy. “We could have a Diane Sykes, or you could have a Bill Pryor, we have some fantastic people,” Trump offered. Those names were significant—a calculated signal to the conservative base that Trump would pick judges to their liking.2
Sykes, a former justice of the Wisconsin Supreme Court named to the Seventh Circuit by George W. Bush, was a darling of social conservatives for, among other things, striking down the Affordable Care Act’s requirement that employers provide no-cost contraceptive coverage, a mandate that Sykes said infringed on the religious freedom of Catholic business owners.3
She had attracted the attention of McGahn, an election lawyer who detested campaign finance regulation, with a ruling striking down major parts of Wisconsin’s campaign finance law on First Amendment grounds.4
(After the election, Sykes made it to a first-round interview with the president’s advisers. But Trump was put off by her marriage to a leading Republican Trump critic, talk radio host Charlie Sykes, although he kept forgetting the key fact: the Sykeses were divorced.)
Pryor, a former attorney general of Alabama tapped for the Eleventh Circuit by Bush, was even more controversial—and therefore an even more potent signal for Trump to send to conservatives. Among other things, Pryor had dismissed the Supreme Court as “nine octogenarian lawyers” and criticized Roe v. Wade
as “the day seven members of our highest court ripped the constitution and ripped out the life of millions of unborn children.”5
As McGahn later described Trump’s approach to the debate, “I knew then that President Trump was a different kind of guy. For him to go up in a debate and say ‘Judge Pryor’ showed me he was the real deal when it was going to come to judges. There was no hesitancy. There was none of this, ‘Well, you know, who are the moderates?’?”6
There was one name McGahn floated on the night of Scalia’s death, as his candidate did his debate prep, that Trump waved off. No one from the swamp, Trump instructed. That meant no Kavanaugh.
There was another, related problem as well. “When people think of Brett,” one campaign official explained, “they think of Bush.” That was not exactly a plus in Trumpworld, and certainly not with the candidate himself. Jeb Bush, the brother of the president for whom Kavanaugh had worked, was still in the race—he dropped out a week later—and even after that the hostility between the Trump and Bush camps festered.
Scalia’s death—and McConnell’s vow to hold the seat open for the next president—transformed the campaign equation. For voters in the Republican base—far more than for Democrats—courts, and the Supreme Court in particular, are always a motivating force. These voters are tired of what they view as unelected judges writing policy preferences into constitutional law. For decades, these liberal judges prevented ordinary citizens from protecting the lives of the unborn and from allowing their children to pray in school. Now they were trying to tell them not only that gays and lesbians had a constitutional right to marry but also that a baker whose religion held that same-sex marriage was sinful had to bake a cake to celebrate the marriage or else be put out of business. Now Scalia’s death brought those concerns to the forefront. Hillary Clinton could not be permitted to replace Scalia with a liberal justice.
The future of the court was comfortable terrain for Cruz, a Harvard-trained lawyer, clerk to Chief Justice William Rehnquist, and former Texas solicitor general. The Texas senator was delighted to exploit the issue not only against Clinton but also, more immediately, against Trump. And he had a handy weapon to wield against his rival: Trump’s sister Maryanne Trump Barry. Older than Trump by nine years, Barry was a veteran federal judge, first appointed to a federal trial-court judgeship by Reagan and elevated to the Third Circuit in 1999 by Bill Clinton. Trump had raised the prospect of tapping his sister for the high court—“jokingly,” he insisted—and managed to dig himself into an even deeper hole with social conservatives.7
“I think she’d be phenomenal. I think she’d be one of the best,” Trump told Bloomberg Politics
in August 2015 about the idea of his sister as a justice. “But frankly, we’d have to rule that out now, at least temporarily.” Again, in October 2015, he told Fox News about the idea of naming his sister to the high court, “I would love to, but I think she would be the one to say, ‘No way, no way.’?”8
Trump may have been joking, but conservatives were not amused. Barry was anathema to conservatives for a 2000 ruling in which she struck down a New Jersey law banning the procedure known as partial-birth abortion. The Supreme Court had just overturned Nebraska’s nearly identical law, but that didn’t matter.9
Conservative activists—and Trump’s Republican rivals—still railed against Barry.
Trump’s “breezy adulations—‘phenomenal’ and ‘one of the best’—gloss over the reality that Barry is a pro-abortion judicial activist,” warned Carrie Severino of the Judicial Crisis Network, the Leo-linked group that eventually fell into line and spent millions of dollars promoting Trump’s Supreme Court picks after the election. In a USA Today
op-ed piece headlined DON’T TRUMP THE SUPREME COURT, she cautioned that Trump “has yet to prove that he can be trusted with that most precious of presidential powers: the power to shape the high court.”10
Likewise, conservative activist Penny Nance of Concerned Women for America called Trump’s praise for his sister “alarming and disturbing,” adding, “That Mr. Trump can so easily offer effusive praise of a judge who is in favor of giving constitutional protection to partial-birth abortion—simply based on the fact that the judge is his sibling—calls into question not just his readiness to be the nominee for the party that fights for the unborn, but his overall fitness for the most important job in the world.”11
In the days after Scalia’s death, Cruz flayed Trump for the comments about his sister. A “Bill Clinton–appointed federal appellate judge who is a radical pro-abortion extremist,” Cruz said.12
For Trump, producing that list, and getting it right, was going to be more important than ever.
By the end of March, Trump was improbably—alarmingly, to much of his party—on the verge of clinching the GOP presidential nomination. But he faced the same vexing problem he had discussed with Christie in Iowa: winning the trust of social conservatives and persuading them to turn out for him in November. On a triumphal trip to the capital as the party’s all-but-certain nominee on March 21, Trump visited the Washington Post
for a session with the editorial board, unveiling a list of foreign policy advisers and, ever the real estate developer, complimenting the newspaper’s gleaming new offices. He toured the new Trump International Hotel under construction on Pennsylvania Avenue, touting its granite exterior—“they don’t build them like that anymore, that I can tell you”—and the cavernous lobby, soon to be adorned with “marble, beautiful marble, from different parts of the world.”13
He pledged fealty to Israel before the American Israel Public Affairs Committee, assuring the crowd, “My daughter Ivanka is about to have a beautiful, Jewish baby.”14
And he convened a group of conservative lawmakers and activists—including Alabama Republican Jefferson Sessions, the first senator to endorse Trump; Heritage Foundation president and former South Carolina senator Jim DeMint; and former House leaders Newt Gingrich and Bob Livingston—to help him tackle the conservative problem.
“The meeting wasn’t philosophical. The meeting was political,” Gingrich recalled of the session in a conference room at Jones Day, McGahn’s law firm. “The meeting was—there are a large number of conservatives who are still not convinced you’re a conservative. What can he do to reassure people that he’s really a conservative?”15
Judges were the obvious answer, and Trump now floated his audacious solution before the group: releasing a list of prospective Supreme Court nominees. Under normal circumstances, with normal presidential candidates, such short lists of potential nominees are closely guarded secrets. Trump turned that convention on its head, much to the discomfort of some of his advisers. It wasn’t having the list that mattered, as Trump saw the situation—it was making the names public. “I don’t think any experienced politician would have done that,” said Trump adviser and former New York mayor Rudy Giuliani. “But he’s different. And I think he felt because I’m different I have to do things differently to satisfy people that I know what I’m doing.”16
Trump, never a man to keep a secret, telegraphed his plans later that day in a news conference held amid the construction of the Trump hotel. “I’m gonna submit a list of justices, potential justices of the United States Supreme Court that I will appoint from the list,” he said. “I won’t go beyond that list. And I’m gonna let people know. Because some people say, maybe I’ll appoint a liberal judge. I’m not appointing a liberal judge.”17
As the group discussed the judges list, the Heritage Foundation’s DeMint volunteered his organization’s services in putting together some names. But one man in the room that day had come forewarned by McGahn of Trump’s desire to have a list and was forearmed with a roster of names. The Federalist Society’s Leo stayed behind after the gathering broke up to speak with Trump and McGahn. He reached into his jacket pocket and pulled out a list of six possibilities.
“I was really hoping for twelve,” Trump told him.
“We can try,” Leo replied.18
Leo’s answer was telling. As Trump pressed him to come up with more names, there was one obvious candidate whom Leo nonetheless omitted. Once again, Kavanaugh was the missing man.
Kavanaugh’s absence from Leo’s list was no accident. Kavanaugh and Leo had known each other for years; they had worked together on judges back when Kavanaugh was at the Bush White House. But privately, Leo harbored concerns about the reliability of Kavanaugh’s conservatism—worries prompted by, but not limited to, the fact that Kavanaugh had demurred a few years back, when he had the chance, to vote to overturn Obama’s signature health care law.
Leo “didn’t trust that Brett wasn’t going to pull a Souter because of his background, being a swamp creature, born and raised in the D.C. area, being very much a Bush Republican,” said one close observer. “All the credentials … pointed to someone who was high risk.”
Those worries weren’t well known outside conservative circles, but—much as his Bush ties served as a black mark with Trump—they threatened to keep the well-credentialed jurist from the Supreme Court seat that he had long coveted.
Well before the meeting at Jones Day, the Federalist Society had become the conservative movement’s established clearinghouse for legal talent. For Trump, the Federalist Society’s imprimatur served as a kind of Good Housekeeping seal of approval for judicial nominees. If the Federalist Society blessed Trump’s picks, conservatives could relax.
Not in their wildest, most ambitious dreams did the founders of the Federalist Society imagine that their group would eventually wield such influence when they organized their first event, held at Yale on the last weekend of April in 1982. “A Symposium on Federalism: Legal and Political Ramifications,” the gathering was called, a reflection of the wonky inclinations of the society’s creators, a group of Yale, Chicago, and Harvard Law students.19
As the proposal for the event explained, “Law schools and the legal profession are currently strongly dominated by a form of orthodox liberal ideology which advocates a centralized and uniform society.” It was time to formulate “a comprehensive conservative critique.”20
Robert Bork, who would be nominated to the Supreme Court five years later, was present at that first event. So were Antonin Scalia, then a University of Chicago law professor, and Ted Olson, then head of the Justice Department’s Office of Legal Counsel. The conference was the first of many networking opportunities—Woodstock for the conservative legal movement, as one attendee put it.21
As much as the Federalist Society was conceived and continues to operate as an intellectual enterprise, it evolved to serve an even more influential and initially unforeseen purpose: attracting, developing, and credentialing the foot soldiers of the burgeoning conservative legal movement.
With Republicans in control of the White House for the next decade, members of the Federalist Society formed the beginnings of a new legal ruling class. The students who once were outliers in the legal academy, oddballs in liberal-dominated class discussions, found themselves holding a valuable new credential. Federalist Society members—the group soon expanded from law school campuses to outposts among practicing lawyers nationwide—provided the legal infrastructure for the Reagan and Bush administrations. Like a stocked pond from which to fish, the Federalist Society supplied the kind of originalist judges that Reagan attorney general Edwin Meese and his successors had committed to putting on the bench, nominees who pledged to hew to the original meaning of the Constitution and avoid substituting their policy preferences for the intent of the framers.
After eight years of a Democratic White House, and with control of the Supreme Court in the balance, the outcome of the 2016 election was of immense importance to the Federalist Society and Leo, especially after Scalia’s death. Conservatives feared that their work of decades would be undone in a matter of months. “When we lost Justice Scalia … it seemed the court would once and for all become the instrument of the progressive liberal agenda,” Leo recalled.22
He put the stakes in apocalyptic terms. “Staring at that vacancy,” Leo said, “fear permeated every day in that countdown to November 8th.”23
Leo had once disdained advances from the Trump campaign. In February 2015, four months before Trump’s fateful escalator ride into the lobby of Trump Tower, the candidate-in-waiting was already making the rounds with the party faithful, speaking at the annual Conservative Political Action Conference. In the hallways of the Gaylord National Resort in suburban Maryland, amid the conservative radio hosts and the Tea Party activists dressed in colonial garb, Trump’s eager young aide Sam Nunberg, who had met Leo when Nunberg was a student at Touro Law Center on Long Island, buttonholed the Federalist Society official.
“I’m working for Mr. Trump: he’s speaking here, and he’s going to be running,” Nunberg recalled telling Leo. “I just want you to understand that he’s going to run. The judiciary is a very important issue to him. He gets it, and you’re going to get everything you want.” Leo, Nunberg said, replied, “Oh, that’s great. Follow up with me.” Leo, as Nunberg interpreted it, “was being nice. He wasn’t being dismissive. But it also wasn’t something that was going to be such a top priority to him.”24
But Trump turned out to be a candidate to be taken seriously—a top priority, in fact. By January 2016, as the Iowa caucuses approached, the tables—and the balance of power—had turned: the Federalist Society was now eager to connect with the surging Trump campaign. Federalist Society vice president Jonathan Bunch tracked down Trump campaign lawyer McGahn, saying the group wanted to discuss judicial selection. “You have nothing to worry about,” McGahn recalled telling him. “I’ve known Leonard for years.”25
The two men made the oddest of couples—Leo, with his highbrow talk of the “structural Constitution,” and Trump, who knew so little of the document that he once referred to its nonexistent Article XII. Leo cared about judges because he cared about reining in what he viewed as the excesses of an out-of-control judiciary. Trump cared about judges because caring about judges might help get him elected. If it was a marriage of convenience, it was an arrangement that worked out well for both parties to the transaction.
By the time of the 2016 campaign, Leo had made himself into a central, perhaps the central, player in conservative legal circles. During the George W. Bush administration, he was one of a group known as the Four Horsemen: the other three were Meese, George H. W. Bush White House counsel Boyden Gray, and Jay Sekulow of the American Center for Law and Justice, later to become Trump’s personal lawyer. The Four Horsemen coordinated closely with the Bush White House, including a young lawyer in the counsel’s office named Brett Kavanaugh, to ensure that judicial openings would be filled with reliable conservatives. When a Supreme Court vacancy arose, first with O’Connor’s retirement and then with Rehnquist’s death, Leo would take a leave from the Federalist Society to help shepherd the nominees—John Roberts and Samuel Alito—through confirmation.
An alumnus of Cornell University and Cornell Law School, where he founded the Federalist Society chapter before graduating in 1989, Leo clerked on the D.C. Circuit court for conservative Raymond Randolph and has worked for the Federalist Society ever since. An owlish-looking man with a penchant for tailored suits, Leo combines devout Catholicism—the father of seven, he has attended daily Mass since the death in 2007 of his oldest daughter, born with spina bifida—with a taste for fine clothes and fine dining.26
He keeps a wine locker at Morton’s, the downtown Washington steak house, and his wine buyer is the chief steward at the Trump International Hotel.27
Leo’s twin driving forces, mutually reinforcing, are Catholicism and judicial conservatism. In public, he disavows any zeal for overturning the constitutional right to abortion. He has accused the left of “using Roe v. Wade
as a scare tactic,” adding, “This is not about overturning a particular case. It’s about getting the Constitution right.”28
That public posture is at odds with his private comments. “For Leonard, it’s all about Roe
,” said one friend. As conservative blogger Ed Whelan wrote in December 2016, defending Leo against improbable attacks from the right, “No one has been more dedicated to the enterprise of building a Supreme Court that will overturn Roe v. Wade
than the Federalist Society’s Leonard Leo.”29
As the years went on, a significant part of Leo’s influence stemmed from one essential skill he brought to the conservative legal enterprise: raising the money needed to run it. This was no easy lift. Big donors—the kind of financiers who can afford the enormous sums needed to underwrite a modern nomination fight—prefer to see a more immediate return on their investments than a judicial confirmation, whose impact could take years if not decades to manifest itself. Leo excelled at explaining the stakes and securing the checks.
Federal tax law allowed Leo to keep the identity of his donors secret, and Leo was adept at batting aside questions about the sources of his funding. There was a storied history of anonymous money being used to support worthy causes, he argued: just look at the civil rights movement. And he disavowed deep involvement in financial operations. “I’m not particularly knowledgeable about a lot of it,” he told the Washington Post
. “I don’t waste my time on stories that involve money and politics because what I care about is ideas.”30
This was beyond disingenuous. The greatest source of Leo’s power was his singular knack for coaxing huge checks, some as large as eight figures, out of billionaire donors. The Washington Post
added up the amount that Leo-affiliated nonprofit organizations had raised between 2014 and 2017 alone and produced the staggering sum of more than $250 million.
Doing good for the conservative cause, it turned out, also offered Leo the ability to do well for himself. He made in excess of $400,000 a year at the Federalist Society, but that accounted for only one of his income streams. He has identified himself in campaign finance filings as an employee of the BH Group, an otherwise unknown Virginia company that has in turn received more than $4 million in payments from Leo-affiliated entities for unspecified consulting, research, and public relations services. In August 2018, Leo paid off the mortgage on the northern Virginia home he had purchased in 2010 for $710,000. Two months later, as the Kavanaugh confirmation was coming to a final vote, Leo closed on a $3.3 million, eleven-bedroom, eight-bathroom waterfront home in Mount Desert Island, Maine. In a statement to the Washington Post
, he described it as “a retreat for our large family and for extending hospitality to our community of personal and professional friends and co-workers.”31
Real estate records show that the mortgage on the Maine home was paid off in July 2019.32
As Leo’s influence grew and his profile rose with the new administration, there was, as there is for anyone with such outsize success, a degree of bristling at his new prominence. “It really did become like he had a little bit of a God complex, as if he were doing the court appointments,” said one person who watched Leo from up close. “People were going to him to pitch themselves … ‘If I can get in front of Leonard’, ‘Can you make an introduction to Leonard?’, ‘What do you think Leonard would think?’, ‘How do I get to Leonard?’ It’s become the Leonard primary—that’s what it’s become under Trump.”
This elevation of Leo’s influence was more than a little inflated, but at least initially that puffery served Leo and the White House simultaneously. “His role both in the selection and even through the confirmation process was a lot more limited than people assume, but it was to our benefit,” said one White House official. “That guy is the stamp of approval.”
Over time, one person who was put out by Leo’s new prominence was Trump himself. At one point, after Kennedy retired and Leo was making the rounds of the Sunday talk shows, Trump exploded, not once but repeatedly, about Leo’s ubiquity. “Who’s this little fucking midget?” he complained, a reference to Leo’s short stature. “That fucking Leonard Leo yapping his mouth,” Trump told another adviser. “Everybody should just keep quiet. I make the decisions here.”
Leo, whose ego had a tendency to get the better of his judgment, would generally remember to acknowledge that the president had the final say. But in an interview after the Kavanaugh confirmation, he offered a revealing comment about the way he perceived his own role in the universe of judicial selection. “I was here long before this president,” Leo observed, “and I will be doing what I am doing, God willing, long after.”33
The process of crafting the list of potential Supreme Court justices took far more time than Trump had anticipated because the final version was delayed by internal “bickering,” as one adviser put it, over who would make it on and who would be left off. The hastily assembled list of foreign policy advisers Trump had released to the Washington Post
the day of the Jones Day meeting—including such nonentities as Carter Page and George Papadopoulos—had been met with widespread derision. That kind of scorn infuriated Trump, and he was determined that it not be repeated with his Supreme Court list. “If we’re going to do this, we can’t fuck it up,” Trump told McGahn. “We can’t have anybody angry with me when this list comes out. I want everybody to be happy.” Assembling the list, McGahn lamented to one friend, was like “juggling chain saws.”
McGahn later made the point that his candidate, in assembling the list, had rejected the conventional political advice to move in a more moderate direction after securing the nomination. “It was not done in the primary season to get people to think he was more conservative than he was,” McGahn said. “It came out after he was the presumptive nominee, at which point every person in Washington said, ‘It’s over; can’t do that; got to move to the middle. It will scare people.’?”34
That account is more than a little self-serving. Assembling, and publicizing, a list of full-throated conservatives was not an act of political foolhardiness on Trump’s part or a demonstration of damn-the-torpedoes conservative bravado. It was a calculated—and long-planned—maneuver to reassure the base. After calling Trump a “pathological liar,” “narcissist,” and “serial philanderer,” Ted Cruz had dropped out of the race a few weeks before the list was finally unveiled.35
But as the harshness of his language about the putative nominee indicated, the fears the Texan had fomented about Trump among the conservative base lingered. Cruz remained a lurking irritant to the Trump campaign, which feared a convention challenge.
It took an additional nudge from McConnell to get the list unveiled two months later. Meeting with Trump later that spring, McConnell suggested that the candidate finally put “pen to paper,” and that “there would be great satisfaction in the conservative community if he made his list public,” said McConnell strategist Josh Holmes.36
In the end, the list, released on May 18, consisted of six federal appeals court judges named by President George W. Bush and five state supreme court justices appointed by Republican governors. It was heavy on social conservatives, including the two Trump had mentioned on the night of Scalia’s death, Sykes and Pryor. “We did what we had to do,” McGahn told one associate. “It’s not the Bible. It’s a list.” The list, said social conservative activist Gary Bauer, “was huge … It was a list full of people that we that work in this field know of, and know about.”
The first list was not the final one. In September, the campaign issued a second roster, with ten additional names. If the point of the first list was to reassure conservatives in general, the second was designed to reassure one conservative in particular—Cruz. The Texas senator had declined to endorse Trump at the Republican convention in Cleveland, urging listeners instead to “vote your conscience.”37
By September, Cruz was prepared to make the endorsement, but he had a price, consisting of two list-related parts. The first was a tighter commitment that Trump would limit himself to the list in choosing a replacement for Scalia. Trump’s original language, back in May, was more loosey-goosey. The list, he said then, was “representative of the kind of constitutional principles I value” and would serve as “a guide to nominate our next United States Supreme Court justices.”38
Cruz wanted Trump to nail things down, so he did. “This list is definitive, and I will choose only from it in picking future justices of the Supreme Court,” Trump proclaimed. Cruz’s second requirement was that Trump put Mike Lee, Cruz’s Senate colleague from Utah—who had, notably, refused to back Trump—on the list.39
Within hours after the second list was released, Cruz posted his endorsement of Trump on Facebook, citing the addition of Lee and Trump’s promise to select only from that expanded roster. “This commitment matters, and it provides a serious reason for voters to choose to support Trump,” he argued.40
Two other additions were notable: Amul Thapar, a forty-seven-year-old Kentucky district court judge and McConnell favorite, and Gorsuch. So was the continuing omission: no Kavanaugh.
Releasing the list was not the end of the campaign’s efforts to calm conservative nerves. A month after the first list was unveiled, at a closed-door gathering of leading religious and social conservatives, Trump sought to provide additional reassurance. At a news conference, eight evangelical leaders who attended the session were asked if they were ready to endorse Trump; none raised a hand.41
“I know a lot of people who are holding their nose,” said Marjorie Dannenfelser, president of the antiabortion Susan B. Anthony List. But she also approvingly cited Trump’s vow to appoint a “pro-life Supreme Court justice.”42
On the campaign trail, Trump hammered home the point that Republicans could trust him on judges. In fact, they needed him. The message was delivered with typical Trumpian subtlety. “If you really like Donald Trump, that’s great, but if you don’t, you have to vote for me anyway. You know why? Supreme Court judges, Supreme Court judges,” Trump said at a rally in Cedar Rapids, Iowa, in July. “Sorry, sorry, sorry. You have no choice.”43
Whereas previous Republican candidates had been coy about applying litmus tests, Trump was explicit: overturning Roe v. Wade
would “happen automatically,” he said in the third and final presidential debate with Clinton, “because I am putting pro-life justices on the court.”44
In rally after rally, Trump warned voters: their Second Amendment rights were at risk. So was their religious liberty. “You pick the wrong people, you have a country that is no longer your country,” Trump said at the Values Voter Summit in September. “This will determine whether or not we remain a constitutional republic, frankly.”45
In Waukesha, Wisconsin, a few weeks later, Trump urged the crowd, “Don’t let it slip away. We have one chance. This is it. We don’t have four more years … They’ll start appointing justices of the Supreme Court. Remember that, Supreme Court—we lost a great one, Judge Scalia. We can’t let it slip away.”46
Although Kavanaugh himself does not vote—he decided to abstain shortly after becoming a judge—he gave more credence than most to the possibility that Trump might win.47
Still, he was already beginning to think ahead to life under a second President Clinton. “He thought Trump was a buffoon, like everyone else,” one friend said. Kavanaugh’s stints in private practice had been brief; he hadn’t had the years to amass the wealth some of his peers were enjoying. He was beginning to muse to friends about feeling bored and talking about leaving the bench to make some money.
Trump’s unexpected win changed all that. It meant that what once seemed like a theoretical problem for Kavanaugh—not being on Trump’s list—was now a serious impediment. He had a Bush problem with Trump and a conservative problem with Leo. Both needed to be resolved if he were to have any chance of becoming a justice.