Confirmation Bias: Inside Washington’s War Over the Supreme Court, from Scalia’s Death to Justice Kavanaugh
By Carl Hulse
Harper; hardcover, $28.99
The battle to fill the Supreme Court seat of Antonin Scalia after his untimely passing in 2016 sparked a political clash decades in the making. It unleashed reverberations that will impact the country for generations, as it upended Senate norms, influenced the outcome of the last presidential election, injected partisanship into the high court, and eroded public trust in the three branches of our government.
Carl Hulse, the Chief Washington correspondent for The New York Times, presents a revelatory look at this still-unfolding chapter in American history and the toxic dysfunction at its root.
This all began when Senate Majority Leader Mitch McConnell denied former President Barack Obama’s nominee for the Court, Merrick Garland, a hearing, and continued when President Donald Trump fulfilled a campaign promise to conservative voters by nominating Neil Gorsuch and Brett Kavanaugh.
Republicans saw the potential for Trump to take advantage of the Supreme Court opening created by Scalia’s death in February 2016, as Hulse writes, “It was a Washington coming-out party for Donald Trump on March 21, 2016, at the offices of a well-connected law firm just a few blocks from the Capitol on the Senate side of the hill.
“Trump was showing real strength as a candidate in the Republican primaries, though he remained suspect in the eyes of many top Republicans in Washington. The idea was to gather together a couple dozen Republican lawmakers and other party heavyweights willing to entertain the idea of backing him at a get-to-know-him session at the headquarters of Jones Day, a prestigious law firm where (Don) McGahn worked.
“The New York-centric presidential candidate hadn’t been in Washington much during the campaign – he was not particularly popular with the establishment Republicans who dominated the capital. But he was speaking later in the day to the American-Israelu Public Affairs Committee, a must-stop for any serious presidential contender who wanted to demonstrate his devotion to Israel, and Trump certainly wanted to do that. It was an opportunity to court some new allies – and to promote his new luxury hotel taking shape in the Old Post Office building, a prominent architectural sentinel on Pennsylvania Avenue that was a sadly underutilized food court and tourist center. The landmark building and its twelve-story tower were about to become a local version of Trump Tower, just a few blocks from the White House.
“In addition to McGahn, Jeff Sessions, the conservative Alabama lawmaker who was the first senator to publicly embrace Trump, would also be on hand. A scattering of other conservative lawmakers such as Senator Tom Cotton of Arkansas joined onetime House Speaker Newt Gingrich and the former congressman Bob Livingston, now a superlobbyist in Washington who had once almost replaced Gingrich, before his dramatic admission of marital infidelity on a memorable Saturday morning in the House in 1998. No Republican congressional leaders attended.
“One person invited with a specific purpose in mind was Leonard Leo, the Federalist Society official. Like many in Washington’s rarified Republican circles, Leo did not know Mr. Trump well.
“Leo’s first contact with the campaign came on the day of Scalia’s death, from Stephen Miller, a far-right anti-immigration staffer who had been an aide to Sessions before becoming an influential adviser to the Trump campaign. Miller sought advice from a colleague of Leo’s as to how they should respond to the passing of Scalia and what to say if they were asked who they would appoint.
“‘It was at that time I had some inkling they were very seriously thinking about these issues of that the justice’s passing had prompted them to do so,’ Leo recalled. ‘And secondly, that they were prepared to go a little bit further than presidential candidates had in the past.’
“Leo was soon to learn just how much further.
“Before the scheduled session at Jones Day, Leo got a call from McGahn, asking if he would remain a few minutes after the main session broke up to have a private word with Trump so the candidate could run an idea by him. Intrigued, Leo said he would be happy to but wanted to know a little more so he could prepare.
“McGahn let him in on a secret – the campaign wanted to put together a list of potential Supreme Court nominees to assure conservatives still nervous about Trump’s occasionally liberal past that his administration would put solid conservatives on the court. With the Scalia seat looking to remain open until the next president took office, Trump saw it as a prime chance to build credibility with conservatives, who always put more weight on the court when casting their vote than Democrats did…
“In McGahn’s mind, the list would mainly be a resource for Trump to draw on when speaking at rallies. If he suddenly decided to throw out the name of a potential judicial nominee, it would at least be a name of someone who had been vetted, a person whose opinions had been researched for possible landmines. It was insurance for an unscripted and unpredictable campaign.
“During the meeting with Leo, Trump began expounding on the list and his plans. As he continued, it became clear that the list was not going to be made known just to conservative insiders or serve as a cheat sheet for the president when discussing his intentions about the Supreme Court. He wanted to release it to the general public.
“McGahn almost fell out of his chair. This had never been done, and it could box Trump in on his nominees. Trump, as his business career demonstrated, was not someone who wanted to be boxed in when it came to big decisions.”
The blockade of Garland, the detonation of the “nuclear option” by both parties to blow up its filibuster, and the poisonous Kavanaugh hearings demonstrate that the Senate’s image as the world’s greatest deliberative body has eroded beyond repair. The breakdown in the Senate has cleared the way for scores of conservative federal judges to be seated by President Trump, enmeshing the judiciary in the same partisan politics that engulf the legislative and executive branches.
The first deep examination of its kind ventures beyond the headlines and the hot takes to investigate the incendiary conflict over three Supreme Court nominations in two years, and more broadly, the increasingly contentious judicial wars brewing since the mid-1980s.
Hulse tells this story through exclusive interviews with many of its players, from Senate party leaders, Republican Mitch McConnell to Democrat Harry Reid; to Obama administration officials, Trump campaign operatives, court activists, and legal scholars. This allows the reader to go behind the scenes and see previously unreported elements of the high-stakes drama.
Confirmation Bias is an essential read to understanding the importance of the Supreme Court, where it is going in the future, and to anticipate how its newest members will affect Americans’ lives for years to come.