In our last column, we discussed Supreme Court Justice Clarence Thomas, an enigma. This week, we take a look at a book published in late 2019 about Brett M. Kavanaugh.
Republicans and the court takeover
Ruth Marcus, in her excellent book, “Supreme Ambition: Brett Kavanaugh and the Conservative Takeover,” provides details and matters not previously revealed. As the title suggests and the jacket blurb makes clear, the supreme ambition is twofold:
“The Republicans began plotting their takeover of the Supreme Court 30 years ago. Brett Kavanaugh set his sights on the court right out of law school. This is the inside story of how their supreme ambition triumphed.”
Marcus, a syndicated columnist for the Washington Post, concludes the book by giving her thoughts on Kavanaugh, someone she knew for more than 25 years and considered to be “open and gracious,” thinking when he was nominated there was nothing in his background that would prevent him from confirmation, until the Christine Blasey Ford allegations were disclosed and investigated.
Marcus opens with the swearing-in ceremony for Neil M. Gorsuch at the White House, when Justice Anthony M. Kennedy asked to speak privately with President Donald Trump, where he advised Trump that he “should think about … Brett Kavanaugh.”
Leonard Leo, a conservative activist involved in lobbying for certain Supreme Court picks, originally was against Kavanaugh, because he was a Bush person and concerns about how conservative Kavanaugh was and how he might rule on Roe v. Wade. Eventually, Don McGahn, then White House counsel, got him on the list, but not easily:
“You have no idea how hard it was for me to get Brett on the list, and no idea how hard it was to get him to the top of the list,” he said.
Despite Trump calling Chief Justice John G. Roberts Jr. a “complete disaster” and others arguing that Roberts was not conservative enough, Marcus disabuses those notions, writing, “To imagine a court in which Roberts would operate, on rare occasions, as the swing vote was to misconstrue the already remarkably conservative composition of the institution.”
With the exception of the Affordable Care Act decision, there has been little swing in Roberts, and in that case, the tradeoff was finding the Medicaid mandate unconstitutional.
Marcus describes the selection process and need for Republicans to avoid another error in selection, such as David H. Souter, as well as the resistance that came from an unexpected source — Sen. Chuck Grassley, R-Iowa, and his chief nominations counsel, Mike Davis.
Looking at Kavanaugh’s upbringing and career, Marcus points to Kavanaugh’s dad, Ed, who was a lobbyist in D.C. and instilled in the younger Kavanaugh, an only child, a view pursuant to which on the appeals court he “protect[ed] American businesses from illegal job-killing regulation.”
(For Chicagoans, if you remember the 1990 Caribbean trip that included Rep. Dan Rostenkowski, that trip was hosted in part by Ed.)
Part of the concern over Kavanaugh’s conservative credentials stemmed from a case he worked on when he clerked for D.C. Circuit Judge Walter Stapleton, the decision that was then appealed to the Supreme Court, Planned Parenthood v. Casey.
Stapleton assigned the case to Kavanaugh, and the Stapleton majority relied on the undue burden test, which the Supreme Court upheld.
Upon finishing the Stapleton clerkship, Kavanaugh moved to other work, but was then called by his former Yale professor, looking for someone to replace Alexander Azar as clerk for 9th U.S. Circuit Court of Appeals Judge Alex Kozinski. Unlike the Stapleton clerkship, a Kozinski clerkship offered a good shot at the coveted Supreme Court clerkship, and that happened.
After finishing his Supreme Court clerkship, Kavanaugh went to work for Kenneth Starr on the Whitewater investigation, and Marcus describes Kavanaugh as being aggressive at times, more cautious at others.
While working for Starr, he “developed a deep-seated and intense dislike of both Clintons,” which the nation witnessed in action during the Ford hearings, when he lashed out at the Clintons.
Marcus also reminds us that Kavanaugh was a part of the Florida recount efforts on behalf of George W. Bush in 2000, then went to work for W., where he met his wife, Ashley, and where W. treated Kavanaugh like a son.
Marcus also notes the extensive correspondence during his White House years with Leo, although much of the correspondence that involved Kavanaugh remains to this day undisclosed.
Bush rewarded Kavanaugh by nominating him at a very early age to the D.C. Circuit Court of Appeals, a “well-trodden stepping-stone to the Supreme Court.” According to one person who has known Kavanaugh for years:
“He was telling everyone for the longest time he’s going to be on the Supreme Court. He was telling people before he was on the appeals court that was his ultimate goal.”
Democrats opposed Kavanaugh’s nomination on a variety of grounds, including his dismissiveness in providing answers to the questionnaire and also for allegedly misstating his involvement in various post-9/11 issues, such as warrantless wiretapping and other issues.
Kavanaugh was eventually confirmed and, as we know, in 2018, became a Supreme Court justice. The book discusses at length the nomination process, including Ford, and Marcus describes the lack of real ability for the Democrats, including ranking Judiciary Committee member Diane Feinstein, to effectively stop Kavanaugh’s confirmation.
Marcus has provided a detailed, rich book, that outlines the process by which “Kavanaugh has realized his lifelong ambition” and “so, too, after three decades of disappointment and frustration, have conservatives fulfilled theirs.”