As 2018 began, President Trump was in a rage about Rex Tillerson, his secretary of state, after press reports—which the secretary did not deny—that he had called Trump a “moron.” This was an unfortunate match from the start: a president with no governing experience choosing a secretary of state with the same absence of qualifications. They had clicked exactly once—the day they met, when Trump, impressed by Tillerson’s recently completed tenure as the CEO of ExxonMobil; endorsements from Condoleezza Rice and Robert Gates, who both served on the company’s board; and Tillerson’s silver hair, offered him the job on the spot.1 Although Washington columnists frequently grouped Tillerson with Secretary of Defense James Mattis and Chief of Staff John Kelly as the “adults in the room” restraining Trump from following his worst impulses, there was no evidence that Tillerson had any impact on Trump (or on anything else). Despite his executive experience, Tillerson’s lack of interest in management and unwillingness to protect the foreign service demoralized the State Department.2 On March 13, Trump fired Tillerson, giving him the dubious honor of the shortest tenure of any secretary of state in US history. In truth, Tillerson’s only achievement was preventing Trump from picking Newt Gingrich or Rudy Giuliani to be secretary of state, which did constitute a significant service to the nation.
CIA director Mike Pompeo would be the new secretary of state. Pompeo had built a good relationship with Trump through his conduct of the president’s daily intelligence briefings.3 He was a former tank commander, first in his class at West Point, and a Harvard Law graduate—a smart, tough warrior whom Trump admired and probably wished he could have been. Pompeo had also served in the House of Representatives, where he had earned strong support from Republican hard-liners and Freedom Caucus members for his role in the endless investigations of Hillary Clinton’s role regarding the 2012 attack on the US diplomatic compound in Benghazi. Every president needs a secretary of state in whom he has confidence, and Pompeo seemed to fit that bill for Trump.
In the wake of Pompeo’s arrival, Trump embarked upon a series of forceful and unorthodox foreign policy decisions—virtually a bomb-shell every week. On March 22, Trump announced that he would impose tariffs on a broad range of products from China.4 In April, the administration announced that its hard-line immigration policy would now feature family separations at the border.5 In early May, Trump announced that the United States was withdrawing from the Iran nuclear deal.6 And on May 31 Trump invoked the national security emergency powers under Section 232 of the 1962 Trade Expansion Act to justify imposing steel and aluminum tariffs on Canada, Mexico, the European Union, and Japan.7 The announcements on trade and the Iran deal caused the G-7 in Quebec to dissolve in acrimony on May 30, captured in an indelible photograph of Trump, sitting with arms crossed, glowering at German chancellor Angela Merkel and the other G-7 leaders.8 Sixteen months into his presidency, Trump’s “America First” seemed increasingly like “America alone.” His disruptive presidency had isolated America from its traditional allies.
In one area, however, the Trump presidency remained focused, strategic, subtle, and successful. Trump never forgot how well he had played the Supreme Court issue in the 2016 campaign, and he loved the accolades he received for putting Neil Gorsuch on the court in 2017. Trump was champing at the bit to nominate another justice; “I think I’m going to get five,” he liked to tell people.9
There was good reason to believe that his second opportunity would come soon. Justice Anthony Kennedy, now eighty years old, had been on the court since 1988, and it was one of the worst-kept secrets in Washington that Justice Kennedy’s wife wanted him to retire. “Will Kennedy step down?” became a virtual parlor game starting in the fall of 2017. Kennedy, although generally a conservative jurist, had aligned with the court’s liberal wing on several important cases. He had cast the deciding vote in 5–4 decisions protecting abortion rights, establishing the constitutional right to gay marriage, and preserving affirmative action. Consequently, replacing Kennedy with a more reliable right-wing justice, locking in a conservative majority on the key social issues, was the highest priority for the Federalist Society and Republicans generally.
Historically, justices appointed by Republican presidents had timed their departures so that another Republican president could nominate their successors. And the Senate Republicans were not shy about their intentions. In early May, Chuck Grassley, the Judiciary Committee chairman, put it bluntly on the conservative pundit Hugh Hewitt’s radio show: “My message to any of the nine Supreme Court justices: if you’re thinking of quitting this year, do it yesterday.”10
In fact, Justice Kennedy had requested a private moment with the president on April 10, 2017, after coming to the White House to preside over the swearing-in of Gorsuch, his former law clerk. Kennedy thanked Trump for picking one of his former clerks and then urged him to consider another of his clerks, Judge Brett Kavanaugh, for the next vacancy. “The justice’s message was as consequential as it was straightforward, and it was a remarkable insertion by a sitting justice into the distinctly presidential act of judge picking,” Ruth Marcus of the Washington Post would later observe.11 Trump and Don McGahn, the White House counsel, who had consolidated power over judicial nominations, got the message. Kennedy was planning to retire, but they could ensure it would happen soon if they anointed his chosen successor.
On June 27, 2018, as the Supreme Court ended its session, Justice Kennedy announced his decision to retire from the court. On July 9, President Trump announced that he would nominate Brett Kavanaugh to succeed Justice Kennedy. Commentators noted that Trump, not known for his subtlety, had handled Kennedy quite deftly: winning his confidence by nominating Gorsuch and then making it clear that he was considering two other Kennedy clerks to replace him. It also became clear that the president and the justice had closer ties than previously known, since Kennedy’s son, Justin Kennedy, was the former head of Deutsche Bank’s global real estate capital markets. Deutsche Bank was the largest creditor and frequent lifeline for the Trump Organization as it constantly teetered on the edge of the financial abyss.12
The stakes for the country could not be higher. Mitch McConnell immediately guaranteed that Kavanaugh would be confirmed in the fall. Minority Leader Chuck Schumer, reflecting the continuing Democratic bitterness about the Garland nomination, said that the nomination should be voted on after the midterm elections. It was destined to be a contentious September. McConnell undoubtedly saw it as wonderful timing: an assured victory, thanks to the Democrats’ inability to filibuster a Supreme Court nomination, and a battle that would energize the Republican base in the run-up to the midterm elections, where turnout might otherwise drop sharply.
Indeed, it was a moment when Senate Republicans might have convinced themselves that Trump was delivering on his populist platform for his base—a hard line on immigration and trade, bashing allies, denigrating minorities and women—while meeting the highest priorities for the Republican Party’s business supporters: tax cuts, deregulation, and conservative judges. The judges also helped to hold the third wing of the Republican coalition, religious conservatives, whose desire to overturn Roe v. Wade was paramount. With the economy booming, Trump’s disruptive presidency seemed to be working. And even though Robert Mueller was conducting his investigation and the Treasury Department was imposing sanctions on high-ranking Russians, it was possible for most Republicans to forget Trump’s disconcerting relationship with Putin and Russia.
The Russia issue would return to center stage soon enough. Mueller’s task force presented to a grand jury detailed evidence of a cyber-attack by an arm of the Russian military during the 2016 presidential election and was ready to request that the grand jury issue a sweeping indictment. But with President Trump scheduled to meet with Vladimir Putin in Helsinki, Finland, in July, Mueller and his team faced a dilemma. They understandably did not want the release of the indictment to create diplomatic difficulties between the United States and its leading adversary, but they also did not want to delay the indictment for what could be perceived as political reasons. Confronted with this difficult clash between legal process and diplomacy, Mueller instructed his staff to take the unusual step of checking with the White House to see whether there were any objections to the timing of the indictment. The answer came back: not necessary to delay.
The indictment was announced on July 13,13 and three days later Donald Trump and Vladimir Putin held a joint press conference in Helsinki. When asked about Russia’s disruption of the election, Trump said that Putin had denied such interference and that he took the Russian president at his word. By that time Trump had received the original assessment of the intelligence community and the corroboration of Mueller’s team. Still, Trump said, “Putin was extremely strong and powerful in his denial,” and that was apparently good enough for him.
Trump’s statement, made standing side by side with Putin and accepting his denial against the overwhelming evidence compiled by the US law enforcement and intelligence communities, provoked a firestorm. “Today’s press conference in Helsinki was one of the most disgraceful performances by an American president in memory,” said John McCain. “No prior president has ever abased himself more abjectly before a tyrant.” Even Newt Gingrich, one of Trump’s fiercest supporters, urged the president to clarify his statement, calling it “the most serious mistake of his presidency.”14 The conservative Wall Street Journal editorial page called it “a national embarrassment.”15 In the Senate, Richard Burr, the chairman of the Intelligence Committee, was deeply involved in reviewing the question of Russian interference in the 2016 election. Burr forcefully stated that the committee had full confidence in the conclusion of the intelligence community: “Any statement by Vladimir Putin contrary to these facts is a lie and should be recognized as one by the President.”16
Eliot A. Cohen, a former foreign policy adviser to George W. Bush, said, “The word treason is so strong that we must use it carefully. But that press conference has brought the President of the United States right up to that dark, dark shore.”17 Trey Gowdy, a retiring House member, gently suggested that the intelligence community should be able to convince Trump that acknowledging Russian interference in the election did not delegitimize his victory. When Trump later attempted to clarify his statement by saying that he had misspoken—“in a key sentence in my remarks, [relating to Russia’s interference] I said the word ‘would’, instead of ‘wouldn’t’”18—the best that Senator Rob Portman could manage in response was “I wish he had said it in front of President Putin and the world, but yeah, I take him at his word if he said he misspoke.”19
Of course, Trump did not misspeak or commit a careless error. Since winning the election, Trump had repeatedly and publicly attacked the intelligence and law enforcement communities for their conclusion that Russia had interfered in the presidential campaign. Throughout his presidency, Trump would lie endlessly, but he was also quite transparent. In accepting Putin’s denial, Trump was simply restating his deeply held view.
Special Counsel Robert Mueller, shocked by what he was seeing, confided to his team that if Trump was in the tank with Putin, “it would be about money”—Trump seeking to make millions in Russia.20 But even if Trump simply hated the fact that Russian interference called into question the legitimacy of his election, that was serious enough. The American president was compromised in dealing with the nation’s foremost adversary. And Trump’s unwillingness to acknowledge Russia’s interference in the 2016 election would also make it impossible for him to recognize, and then combat, potential Russian interference in the 2018 or 2020 elections.
Mitch McConnell reacted tersely: “As I have said repeatedly, the Russians are not our friends, and I agree with the assessment of the intelligence community.”21 McConnell, a hard-liner on Russia, was undoubtedly appalled by Trump’s behavior. His stature, and some degree of self-respect, required him to condemn the Russians and support the intelligence community. But McConnell saw nothing to be gained from attacking Trump; there was every reason to turn the page by moving on to a better topic for the Republican Party, an issue with profound long-term impact where he could work with Trump, not against him. It was time to clear the decks to confirm a second Supreme Court justice.
Judge Brett Kavanaugh, age fifty-three, was in many ways a nominee from central casting. Educated at Yale College and Yale Law School, Kavanaugh had served a series of prestigious judicial clerkships, culminating in his work for Justice Kennedy. He had been deeply involved in Republican politics and government, including stints as associate White House counsel and staff secretary for George W. Bush. Indeed, Kavanaugh had become even closer to the Bush family by marrying President Bush’s personal secretary, Ashley Estes. Bush had appointed Kavanaugh to the D.C. Circuit Court of Appeals, the second most powerful federal court, where he had served for twelve years and had earned respect as a serious, capable judge. He had an academic bent and had taught at Yale and Harvard. He was popular with his legal colleagues, including Justice Elena Kagan, who had been dean of the Harvard Law School when Kavanaugh taught there. Kavanaugh had a lovely family, coached his daughters’ basketball teams, and was active in his church.22
Yet despite these glittering credentials, Kavanaugh had not been included in the list of possible Supreme Court nominees that the Federalist Society prepared for Trump during the 2016 presidential campaign. Leonard Leo, the longtime vice president of the Federalist Society and a powerful force in the conservative legal movement, regarded Kavanaugh as too much of a creature of the Washington, D.C., “swamp,” who would be susceptible to political and media pressure that might cause him to “go liberal” once on the court. Leo was determined to avoid any possibility of another David Souter, John Paul Stevens, Anthony Kennedy, or Sandra Day O’Connor—that is, another justice nominated by a Republican president who turned out to be receptive to liberal arguments.23
It was hard to understand Leo’s reservations. Kavanaugh’s record established him as an ideological warrior with strong right-wing views. A vocal critic of “unenumerated” rights, Judge Kavanaugh posed a clear threat not only to Roe v. Wade but also to the line of cases before and since Roe that had guaranteed a right of privacy to women (and men) to make the most personal life decisions. He had said that states cannot ban AR-15 assault weapons, although the Supreme Court had held that the Second Amendment protected the private right to own a handgun but permitted reasonable regulations. Kavanaugh had also expressed the view that the strict wall between church and state is “wrong as a matter of law and history.”
Just as significant, Kavanaugh had championed the controversial constitutional doctrine of the “unitary executive”—an expansive view of presidential power. His view went well beyond the reasonable position that a sitting president cannot be indicted while in office; he argued that “we should not burden a sitting President with civil suits, criminal investigations or criminal prosecutions.” Had this been the law in the 1970s, the Supreme Court would never have had the chance to rule on U.S. v. Nixon, the case that forced Richard Nixon to surrender the Watergate tapes, leading directly to his resignation as president. “It is an especially dangerous time to have a Court that supports executive supremacy,” observed the historian Timothy Naftali, the former director of the Nixon Presidential Library.24
A data-driven study of Judge Kavanaugh’s writing found that his opinions and rhetoric were more extreme and polarizing than those of Samuel Alito, Neil Gorsuch, and Robert Bork when they were nominated to the court. “More so than his colleagues,” the authors noted, Kavanaugh “has expressed dislike toward Congress and the federal government, as well as working-class groups (labor unions and farmers).” After summarizing the evidence, the authors concluded, “Kavanaugh is an outlier judge; he would not be your average justice. On the evidence derived from the content of his decisions, he would be more radical than his colleagues. . . . [He] is much like the man who selected him—highly divisive in his decisions and his rhetoric.”25
After Donald Trump’s election, Kavanaugh had campaigned, not very subtly, for a nomination to the court. In a February 2017 keynote address at the Notre Dame Law School in a symposium honoring Justice Scalia, Kavanaugh said, “I loved the guy. Justice Scalia was and remains a judicial hero and a role model to many throughout America. He thought carefully about his principles, he articulated his principles, and he stood up for those principles. As a judge, he did not buckle to political or academic pressure from the right or the left.”26 That was regarded as a signal to the Federalist Society: Brett Kavanaugh would not be one of those Republican nominees to the Supreme Court who turned out to be a centrist.
Kavanaugh was also a familiar and controversial figure to the Senate. As a young lawyer, he had found his way to the midst of virtually every major political battle during the Clinton and Bush presidencies. He served under Kenneth W. Starr, the independent counsel who investigated President Clinton, examining the suicide of deputy White House counsel Vincent W. Foster, and he drafted some of the most salacious parts of the report that led to Clinton’s impeachment by the House after his affair with Monica Lewinsky. When the 2000 election between George W. Bush and Al Gore deadlocked for thirty-six days over the virtual tie vote in Florida, Kavanaugh was one of the Republican lawyers working on the recount litigation. During the Bush administration, Kavanaugh worked on the selection of federal judges and legal issues arising from the 9/11 terrorist attacks.
He was “the Zelig of young Republican lawyers,” Chuck Schumer said in 2004. “If there was a partisan political fight that needed a good lawyer in the last decade, Brett Kavanaugh was probably there.”27 His own nomination to the D.C. Circuit Court of Appeals was held up for almost three years by the senior Democratic senators Patrick Leahy and Richard Durbin, who believed that Kavanaugh had lied to the Judiciary Committee about his role in controversial nomination fights. McConnell, who never shied away from a partisan fight, made clear in multiple phone calls with Trump and McGahn that other nominees would be easier to confirm.28
Ultimately, however, Trump got excited about Kavanaugh. As one White House official recalled, Trump would ask, “Why didn’t anyone tell me he had been on the court for twelve years? Why didn’t anyone tell me that he clerked for Kennedy, went to Yale and said all these nice things about executive power?” Trump particularly liked the fact that Kavanaugh was a fighter who had spent several years going after Bill and Hillary Clinton.29
It took Chuck Schumer less than a half hour after Kavanaugh’s nomination was announced to declare his all-out opposition.30 Far more was at stake than when Gorsuch was nominated. This was the opportunity that McConnell, the Federalist Society, the Christian Right, and the Republican Party had sought for thirty years: the chance to tilt the Supreme Court majority decisively to the right. With the filibuster no longer available for Supreme Court nominations, McConnell could get the Senate to confirm Kavanaugh with only the fifty-two Republican votes, and there were several moderate Democrats—Joe Manchin, Claire McCaskill, Joe Donnelly, Heidi Heitkamp, and John Tester—facing tough reelection fights in states that had voted for Trump in 2016, who might also support Kavanaugh. McConnell’s principal challenge was likely to be holding the votes of Susan Collins and Lisa Murkowski, who were independent by nature and pro-choice. The opposition to Kavanaugh from supporters of abortion rights was fierce from the start. They believed, with clear justification, that Kavanaugh posed a threat to Roe v. Wade and the 1992 decision in Planned Parenthood v. Casey, a 5–4 decision in which Kennedy had been in the majority.
If there was a path for the Democrats to defeat the nomination, it was the playbook from the epic battle against Robert Bork in 1987, when the retirement of Justice Lewis Powell had opened up the swing vote on the court. Led by Judiciary Committee chairman Joe Biden and Ted Kennedy, the Democrats successfully portrayed Bork, a brilliant legal scholar and judge, as a judicial extremist whose constitutional views were sufficiently outside the mainstream that his nomination to the court should be rejected. Of course, Bork helped their cause by rising to the bait and speaking at length about his judicial philosophy, which was in fact quite extreme. It also helped that the Democrats had just retaken the Senate majority, the Reagan presidency was rocked by the Iran-contra scandal, and there were a handful of moderate Republicans who were open to opposing Bork.31
Now, thirty years later, Supreme Court nominees had learned the lessons of Bork’s experience and tap-danced through their confirmation, invoking the “Ginsburg rule”—“no forecasts, no hints”—to avoid all difficult questions.32 Kavanaugh would be extremely well prepared. The Senate was in Republican hands, and the politics were far more tribal. Moreover, the Republicans had learned bitter lessons from the Bork experience, and the Federalist Society had spent thirty years creating the political and financial infrastructure to prevent another such defeat. McConnell was on a personal mission to remake the Supreme Court, and he would stop at nothing to win. The Democratic strategist Ron Klain, who had worked on the selection or confirmation of eight justices over his career, grimly observed, “You had this sense of impending doom from moment one.”33
Working closely with Judiciary chairman Chuck Grassley, Lindsey Graham, and Don McGahn, McConnell dealt with the problem of Kavanaugh’s voluminous record by running roughshod over every precedent. It was customary that the National Archives curate the documents and submit what was relevant to the Judiciary Committee members and their staffs. This time, however, the documents were vetted not by the Archives staff but by William Burck, a lawyer chosen by the White House who had previously worked for Kavanaugh. When Elena Kagan had been nominated to the court in 2010, she was serving as solicitor general in the Obama administration, and the White House waived “executive privilege,” allowing internal documents to be considered by the committee. This time, the White House invented a new claim of “constitutional privilege,” preventing the committee from seeing more than 100,000 pages of documents without requiring the White House to invoke executive privilege. The Democrats objected vehemently, but McConnell didn’t mind. One of his favorite sayings is “When you’re arguing about process, you’re losing.”34 Some liberal groups agreed. “Chuck Schumer is bringing a FOIA request to a knife fight,” said Elizabeth Beavers, the associate policy director of Indivisible, a grassroots Trump-resistance group. “Most ordinary constituents are not enraged and spurred to action by process.”35
Chuck Grassley would preside over Kavanaugh’s confirmation hearings, as he had done for Neil Gorsuch the year before. Grassley had been elected to the Senate in 1980, riding Ronald Reagan’s landslide victory, and he was now serving his seventh six-year term. He was a conservative Republican, but his interests were wide ranging and his views often unpredictable; he frequently cosponsored legislation with liberal Democrats. Grassley had also emerged as a leading champion of criminal justice reform, starting with legislation that would change the harsh, mandatory sentences that had crowded US prisons with young men, mostly black and brown, convicted of minor drug crimes. “I consider myself a law-and-order Republican,” Grassley would say. “I’m also a taxpayer watchdog. And I believe in the redemptive power of rehabilitation.”36
Grassley was a steadfast defender of whistleblowers in the government; he had first written legislation protecting whistleblowers in 1989. He was also the principal champion of the inspectors general serving as watchdogs in the major federal agencies. In 2017, less than three weeks after Trump took office, Grassley wrote to the president that whistleblowers could help him accomplish his goal to “drain the swamp.” “Whistleblowers are brave, patriotic people who tell the truth about what is going on in our government. They help us identify waste, fraud and abuse in a vast and unwieldy federal bureaucracy,” Grassley argued. “Whistleblowers speak up about violations of law, rule and regulation, and about gross mismanagement, abuses of authority and threats to public health and safety. They often do so at the peril of their own careers, reputations and even health. They put Americans first.” He noted that he had introduced legislation to protect whistle-blowers from retaliation.37
Despite his independence, Grassley was unstintingly conservative where judges were concerned. He and his staff ran the judicial conveyor belt that moved federal court nominations through the Senate as rapidly as possible. He would do the same for Kavanaugh under the bright lights and national attention that Supreme Court confirmations received. Grassley was experienced and tough enough to handle this important task; he was also smart enough to know that every important decision would be made in conjunction with McConnell and McGahn.
Part of Ron Klain’s “sense of impending doom” was the feeling that the Senate Democrats were hopelessly outgunned. The ranking Democrat on the Judiciary Committee, California’s Dianne Feinstein, had had a storied career and a record of tough independence, but she was now eighty-five years old, and she had unmistakably lost more than a step. Many of her colleagues were quietly chagrined that she had chosen to seek reelection to a fifth full term in 2018. Feinstein could not provide the leadership that the Democrats needed, but her pride and Senate mores did not allow her to turn over her leadership role to someone who could.38 The committee’s Democrats included an impressive group of experienced lawyers, including former prosecutors and state attorneys general Pat Leahy, Dick Durbin, Amy Klobuchar, Kamala Harris, Richard Blumenthal, and Sheldon Whitehouse. But the committee rules, which limited each senator to five minutes of questioning, put a premium on the ability of the group to coordinate their questions, and the Democrats proved unable to do so. Will Rogers’s famous quip—“I’m not a member of any organized political party; I’m a Democrat”—had found new relevance a century later.
Despite its power and prestige, the Senate only rarely takes center stage and seizes the attention of the American public. The powerful and effective Senate of the 1960s and 1970s won the confidence of Americans because of its handling of those historic moments: breaking the two-month Southern filibuster to enact the Civil Rights Act of 1964; the Foreign Relations Committee hearings, chaired by J. William Fulbright, which showed the country the flawed assumptions of the escalation of the Vietnam War (1966); the Watergate committee exposing the abuses of the Nixon administration (1973); and overcoming intense partisanship to approve the bitterly controversial Panama Canal treaties (1978). In recent decades, however, the Senate had forfeited public confidence by its disastrous handling of the confirmation of Clarence Thomas after the accusations of workplace sexual harassment by Anita Hill (1991) and the rush to judgment giving President George W. Bush the authority to send US forces into Iraq (2002). Now, with America already angrily divided over the Trump presidency, with the swing seat on the Supreme Court on the line, the weakened and polarized Senate was about to fail America in a profound way.
The Judiciary Committee hearings on Brett Kavanaugh’s confirmation were chaotic from the first moment, “less regular order than a senatorial roller derby, with Kavanaugh as a bystander in the fury erupting around him,”39 in the words of the Washington Post’s Ruth Marcus. Kamala Harris interrupted Chairman Grassley’s opening statement six seconds into his first sentence, complaining about the treatment of the documents, arguing for a postponement. Six of her Democratic colleagues followed immediately, one after the other. “What are we trying to hide?” asked Leahy, who had chaired the committee for ten years. “Why are we rushing?” He charged that Kavanaugh’s nomination had received “the most incomplete, most partisan, least transparent vetting for any Supreme Court nominee that I’ve ever seen, and I have seen more of those than any person serving in the Senate.” Leahy offered a long list of objections to the handling of the documents, concluding that “nothing about this is normal.” Feinstein, struggling to maintain some order, interjected weakly, “I really regret this, but I think you have to understand the frustrations on this side of the aisle.”40
This continued for nearly ninety minutes, and the anger of the Democratic senators was matched by the protestors in the audience. “This is a mockery and travesty of justice,” shouted one. “Cancel Brett Kavanaugh,” yelled another. Viewers around the country witnessed the spectacle of protestors being dragged from the hearing room into the corridors of the Senate office building, which were already jammed with women dressed in scarlet Handmaid’s Tale outfits.41
Playing to the television cameras, and proving their anger to the Democratic base, was a high-risk strategy. The Senate Republicans were happy to use the chaotic scene, accusing the Democrats of descending into “mob rule,” as John Cornyn of Texas put it. “That the senators interrupted the chairman at the start of his opening statement was a shocking, if understandable, breach of decorum. Combined with the screaming audience members being forcibly removed, it made the Democrats look like an unruly, even unhinged, pack,” Ruth Marcus wrote.42
The volume of documents from Kavanaugh’s White House years created a significant challenge, but over the years, committee chairmen and ranking members had found compromises to countless problems of this type. Grassley and Feinstein had served more than a quarter of a century together. Traditionally, such long and deep relationships established trust and made the Senate able to work through difficult problems. But the magnitude of what was at stake—the swing vote on the Supreme Court—combined with the Senate’s steep decline to make compromise impossible. Given those realities, the Democrats should have considered simply refusing to attend the hearing, which would have forced the Republicans to accept a delay and offer a compromise or to proceed on their own, violating the Judiciary Committee’s own rules, which require at least one member of the minority party to be present in order for business to be transacted.
While all of this was going on, Brett Kavanaugh sat and waited. He was well prepared for the committee’s questioning, and, like all nominees since Bork, he was “adept at showing familiarity with doctrine without tipping his hand about any of his own views,” in the words of Ruth Marcus.43 In fact, Kavanaugh’s numerous opinions, plus his willingness to expound on his views in articles and speeches, had given the Democrats plenty of ammunition and left very little doubt that he was fiercely conservative. Ultimately, Kavanaugh and the president who nominated him were counting on McConnell to hold the Republicans together and deliver fifty-one votes, or fifty plus Vice President Pence’s tiebreaker. Barring a catastrophic storm of unforeseen magnitude, Brett Kavanaugh would be confirmed in time for the court’s next session on the first Monday in October.
Of course, although neither Kavanaugh nor the committee members knew it, the catastrophic storm had already arrived.44 Christine Blasey Ford, a professor of psychology from California who specialized in measuring the aftermath of trauma, had, after weeks of agonizing indecision, called the district office of Representative Anna Eshoo to tell her that Judge Kavanaugh had sexually assaulted her at a party when they were high school students in Maryland thirty-five years before. Ford also reached out to the anonymous tip line at the Washington Post and left two messages about the assault, the second of which named Kavanaugh. Inexplicably, almost two more weeks passed before Eshoo’s district office director met with Ford on July 18.
Two days later, on July 20, Eshoo met with Ford and then called Senator Feinstein.45 “You know this is very serious,” Feinstein told Eshoo. “Have her write a letter to me.”
Ford, still torn between her desire to expose Kavanaugh’s action and an equal desire to keep the whole thing private, took ten days to produce the letter. During that time, Feinstein did nothing to follow up, nor did she inform her staff. Once the letter arrived, with its alarmingly detailed description of the incident, Feinstein immediately arranged a call with Ford, and she and a staff member questioned Ford about the allegations. Feinstein came away believing Ford but also assured her that she would protect her privacy—which was something she could not guarantee, given the fact that Ford was discussing it widely with friends and had shared it with the Washington Post tip line.
Feinstein also told her staff she wanted Ford’s accusation investigated, but not in a partisan way. There was an obvious solution to the problem: Senate committee process 101, sharing it with Grassley. But Feinstein did not do that, fearing that he would share the letter with the White House. Nor, remarkably, did Feinstein seek the counsel of any of her Democratic colleagues, including Durbin and Schumer, extraordinarily experienced senators whose advice would have been helpful. When rumors of the letter prompted her colleagues to ask Feinstein to share it, she refused.46
Feinstein made a series of unforgivable errors. Of course this was a sensitive matter, but it was not rocket science or a question of national security. Once Ford had conveyed her story, Feinstein’s obligation was to the Senate and the country. She should have told Ford that she had waived her privacy in coming forward and that, as ranking member of the Judiciary Committee, she was obligated to share the information with Grassley. Feinstein could promise to do her best to protect Ford’s confidentiality, but she should have told Ford that she could not guarantee it.
For the Democrats, the result would be a nightmarish repeat of the confirmation of Clarence Thomas in 1991, when at what seemed to be the end of contentious hearings, Anita Hill came forward to accuse Thomas of sexual harassment when she worked for him at the Equal Employment Opportunity Commission. The mishandling of Hill’s allegation disgraced the Senate, as the Republicans attacked her viciously and the Democrats defended her feebly. The debacle cast a long shadow over Joe Biden, who was then Judiciary Committee chairman. Diane Feinstein had won her Senate seat in 1992 in part because of the surge of activism in the “year of the woman” following the Thomas hearings. Now, twenty-seven years later, a Senate with twenty-five female senators, including four on the Judiciary Committee, in the midst of the #MeToo movement, faced a similar situation and produced its own massively failed response.
As rumors of Ford’s story began to surface, Dick Durbin insisted on a meeting of the Judiciary Committee Democrats. When they met, Feinstein, in the words of one senator, was “agitated and defensive.” She kept insisting that she had done the right thing, honoring Ford’s repeated requests for confidentiality, and would continue to do so.
But Durbin insisted that this was impossible. “Dianne, stop, stop, listen to me,” he said. “This is incredibly important. We have to get this right. You cannot keep this to yourself anymore.” It had been “a huge mistake” to have sat on the letter. “You must give this to the FBI,” he repeated. “I respect your motives, but you cannot withhold this.” Feinstein gave in and sent the letter to the FBI.47
When Christine Blasey Ford recognized that the story could no longer be contained, she authorized Emma Brown, the Washington Post reporter with whom she had been speaking, to use her name and publish the details of her letter. When the Post story broke, overnight Brett Kavanaugh’s confirmation lost its sense of inevitability. Jeff Flake, a key committee vote, told the Washington Post, “I’m not comfortable moving ahead with the vote on Thursday if we have not heard her side of the story or explored this further.” Bob Corker also called for a delay, saying that “it would be best for all involved, including the nominee. If she does want to be heard, she should do so [speak up] promptly.” Susan Collins, always regarded as a key vote, tweeted, “Professor Ford and Judge Kavanaugh should both testify under oath before the Judiciary Committee.”48
In a tense conference of Republican senators, McConnell and Grassley initially opposed a hearing on Ford’s allegations, but they reluctantly concluded that it could not be avoided.49 And the Republicans were wise enough to know that in the #MeToo era, Ford had to be treated respectfully. In 1991, the Republicans on the Judiciary Committee had brutalized Anita Hill; Alan Simpson later acknowledged being a “monster” to her.50 When Trump, who had been uncommonly restrained, lashed out at Ford, questioning why she had not filed charges thirty-six years earlier, Collins described herself as “appalled by the president’s tweet.” Flake called it “incredibly insensitive,” and McConnell called Trump to urge him to stop.51
In the White House, the pressure was extraordinary. Ivanka Trump and Jared Kushner were urging Trump to find a new nominee. Leonard Leo shocked the White House and Grassley’s staff by suggesting that it was time to abandon Kavanaugh. Leo argued that there were other excellent nominees for whom he could raise the money that would ensure that the Supreme Court would be a major issue in the midterm elections, and the nominee could be confirmed afterward. In the maelstrom, two people stayed cool: Don McGahn and Mitch McConnell. McGahn simply refused to answer the phone when President Trump called him. “I don’t talk to losers,” McGahn reportedly said. He then turned to McConnell to stiffen Trump’s spine. “You can ditch Kavanaugh if you really want, but don’t think you can play a switcheroo here and I’m going to get it done before the election, because I’m not,” McConnell told the president.52 Later that day, Trump asked McConnell whether he was determined to see Kavanaugh confirmed. “I’m stronger than mule piss” on Kavanaugh, McConnell replied, a phrase that probably had never been said to any president before.53
On September 27, Grassley gaveled the Judiciary Committee to order for one of the most memorable days of testimony in the long history of the Senate. The courteous, friendly relationship between Grass-ley and Feinstein was long past. He ripped her for failing to share Ford’s letter, which he referred to as “the ranking member’s secret evidence.” He reviewed several opportunities when Feinstein could have brought the matter to his attention. Feinstein responded strongly, attacking the majority’s failure to investigate Ford’s allegation and castigating it for rejecting the request for an FBI investigation or for hearing testimony from any other witness. She called these actions “an inexcusable rush to judgment.”54
Christine Blasey Ford’s prepared statement was emotional, gripping, human, and convincing. “I am here today not because I want to be. I am terrified. I am here because I believe it is my civic duty to tell you what happened to me when Brett Kavanaugh and I were in high school,” she said. In less than twenty minutes, she described the assault by Kavanaugh and Mark Judge, two drunken high school seniors. Ford was precise on certain memories, vague on other details, which made her seem more credible, underscoring that she had been in shock. Leahy asked her what she remembered most of the evening. Ford, the psychologist whose expertise was victims’ trauma, responded, “Indelible in the hippocampus is the laughter” of Kavanaugh and Judge, “the uproarious laughter between the two, and their having fun at my expense.”55
Ford was eminently believable; the overwhelming reaction among Republicans was despair. “Almost all of us were saying ‘it’s over,’” Jeff Flake recalled. “Had there been a vote right after her testimony, it would not have been good for Kavanaugh,” Bob Corker stated. On Fox News, Chris Wallace called Ford’s testimony “extremely emotional, extremely raw and extremely credible,” adding, “This is a disaster for the Republicans.”56
Kavanaugh’s nomination hung by a thread. Trump was shaken, asking those around him, “Do you think this guy is too damaged to be confirmed? And if I pull him, can I salvage it and get another guy through?” Ultimately, the two strongest voices steadied the ship. McConnell reassured the president, “We’re only at halftime.” McGahn played an even stronger role. Kavanaugh had done a previous interview on Fox News in which he sounded both robotic and weak, which was not the way to keep Trump’s support. Now speaking to Kavanaugh with only his wife present, McGahn urged Kavanaugh to defend himself forcefully because his reputation and career were at stake.57
When the committee reconvened to hear from the nominee, Kavanaugh rose to McGahn’s challenge. In a forty-five-minute tirade, he denied every aspect of Ford’s accusation; the incident she described, he said, never occurred. He then went further. “This confirmation process has become a national disgrace,” Kavanaugh raged. “The Constitution gives the Senate an important role in the confirmation process, but you have replaced advise and consent with search and destroy.”
“The behavior of several of the Democratic members at my hearing a few weeks ago was an embarrassment,” Kavanaugh asserted, “but at least it was just a good old-fashioned attempt at Borking. These efforts didn’t work. When I did at least okay enough at the hearings that it looked like I might actually get confirmed, a new tactic was needed. Some of you were lying in wait and had it ready.” In Kavanaugh’s telling, Feinstein’s decisions were part of a nefarious plot to hold Ford’s allegations unless and until they were needed, and then make them public and follow them with those of other accusers to destroy him.
“This whole two-week effort has been a calculated and orchestrated political hit, fueled with apparent pent-up anger about President Trump and the 2016 election. Fear that has been unfairly stoked about my judicial record. Revenge on behalf of the Clintons. And millions of dollars from outside, left-wing opposition groups,” Kavanaugh continued. “This is a circus. You may defeat me in the final vote. But you’ll never get me to quit. Never.”58
To objective observers, Kavanaugh’s rant did nothing to change the essential fact that Ford, coming forward reluctantly with a painful story that she had told only to her therapist, her husband, and a few friends, was far more credible than Kavanaugh, who had every incentive to lie about his drunken behavior thirty-five years earlier, to save his career and his reputation. But Kavanaugh’s performance had worked; Trump loved his fight and was reassured and energized. And Kavanaugh’s rage sparked Lindsey Graham, whose political identity vacillated between being an independent maverick on the model of his late friend John McCain and the right-wing prosecutor who had gone after a Democratic president in Bill Clinton’s impeachment twenty years earlier.
“If you wanted an FBI investigation, you could have come to us,” Graham charged. “What you want is to destroy this guy’s life, hold this seat open, and hope you win in 2020. . . . Boy, all you want is power. I hope you never get it. I hope the American people can see through this sham. That you knew about it and held it. You had no intention of protecting Dr. Ford, none. She’s as much of a victim as you are.”
“God, I hate to say it, because these have been my friends, but let me tell you, when it comes to this, if you’re looking for a fair process, you came to the wrong town at the wrong time, my friend,” Graham concluded.59
When the brutal day’s hearing came to an end, Grassley announced the committee would vote on the nomination the next day. However, the troubled group of undecided or uncommitted senators—Flake, Collins, Murkowski, and Manchin—met for dinner and found themselves still dissatisfied that the allegations of Ford and others had not been adequately investigated. Of the four, only Flake served on the Judiciary Committee. The next morning, Flake, at the prodding of Chris Coons, the Delaware Democrat who was his close friend, insisted on an FBI investigation. McConnell, Grassley, and the White House had no choice; without Flake’s vote, the nomination would fail in committee.
An agreement was hammered out that the FBI would have a week to investigate the allegation more fully, but with strict parameters (set by McGahn) on what the FBI could investigate. Experienced lawyers and investigators immediately realized that under these limitations the investigation was destined to fail: too brief, and lacking independence. Ultimately, the FBI questioned only four people and did not interview Ford or Kavanaugh. The FBI also failed to question at least one universally respected Washington public policy expert—Max Stier, the president and CEO of the Partnership for Public Service—who would have confirmed previous obscene acts by Kavanaugh when he drank excessively.60 But McConnell and the White House never considered a serious investigation. They would do only as much as needed to be done to satisfy Flake, Collins, and Murkowski, and thereby secure fifty votes.
The dramatic day of testimony produced remarkable reactions across the nation. The Jesuit publication America withdrew its previous endorsement of Kava naugh,61 and more than twenty-four hundred law professors joined an open letter opposing his confirmation. Calling his testimony “intemperate, inflammatory and partial,” the law professors stated, “Judge Brett Kava naugh displayed a lack of judicial temperament that would be disqualifying for any court, and certainly for elevation to the highest court in the land.”62 The National Council of Churches, an organization representing thirty million Catholics, said that Kavanaugh had “exhibited extreme partisan bias and disrespect for certain members of the committee and thereby demonstrated that he possesses neither the temperament nor the character essential for a member of the highest court in our nation. . . . We believe he has disqualified himself and should step aside immediately.”63 Kavanaugh’s extraordinary tirade, which law professors and religious leaders saw as clearly disqualifying, would ultimately affect the vote of only one Republican senator.
Jeff Flake, a man of genuine conscience, was appalled at the state of American politics. He had shown his courage by speaking out against Trump early and often, ending his career in politics. Chris Coons had hammered away at his friend, raising his concern about Kavanaugh’s excessive deference to presidential power. Nor was Flake impressed by Kavanaugh’s fiery defense, which he found completely lacking in judicial temperament.64 He was positioned to strike a blow against Trump, by denying him a second Supreme Court justice. But Flake was a conservative Republican, with strongly held pro-life views. At the end of the day, Flake would not derail the opportunity to lock in a conservative majority on the Supreme Court.
For Susan Collins, the issues were different. She was an independent player who hated what the Senate had become. She had shown plenty of courage in the past, breaking with McConnell on two of his highest priorities: Obama’s economic stimulus in 2009 and the repeal of the Affordable Care Act in 2017. No one had studied the issues more intently than Collins, a nonlawyer who had been briefed by nineteen outside attorneys.
But from the beginning, Collins signaled that she intended to vote for Kava naugh, notwithstanding the fact that she was a staunch defender of a woman’s right to choose, whereas he was an opponent of abortion rights. She may have had good karma with him from his time in the Bush White House or from his earlier confirmation to the Court of Appeals. After a long discussion with him, Collins accepted Kavanaugh’s assurance that he believed in stare decisis; in other words, he would not overrule Roe v. Wade. Calls from President George W. Bush and conversations with Rob Portman, who had served with Kava naugh in the Bush White House, plainly helped satisfy her that the nominee was a mainstream conservative who would be an open-minded, even-handed justice.
On this matter Collins often seemed to be on an island of her own. Everyone else on both sides of the fierce fight understood what was at stake. America, the most influential Jesuit magazine, had endorsed Kava naugh early, specifically citing his antiabortion views: “Anyone who recognizes the humanity of the unborn should support the nomination of Judge Kavanaugh.”65 The whole point of the Federalist Society list was to ensure the nomination of Supreme Court justices who were pro-life. That was why so many pro-life advocates were jubilant that Kava naugh had been chosen.
Nor was there anything in Kavanaugh’s record that was consistent with Collins’s views on gun control, the separation of church and state, presidential power, or environmental regulation. Nonetheless, she liked him and trusted him. And in private statements, and then in her decisive floor speech, Collins made clear her anger at the degree of pressure she had received from women’s rights groups. A significant “tell” was that in her closing speech, Collins made no reference to Kavanaugh’s tirade or the issue of judicial temperament that it posed. When she encountered an issue that she could not, in good conscience, resolve in his favor, Collins simply chose to ignore it.66
Susan Collins’s vote ensured that Brett Kava naugh would be confirmed to be a Supreme Court justice, even though Lisa Murkowski, after agonized deliberation, voted against him. In the days that followed, where another president might have tried to bring people together, Trump lashed out, calling Kavanaugh “a man who did nothing wrong, a man that was caught up in a hoax that was set up by the Democrats, using the Democrats’ lawyers.”67
Collins may have summarized it best: “Today, we have come to the conclusion of a confirmation process so dysfunctional, it looks more like a caricature of a gutter level political campaign than a solemn occasion.”68 Given the frightening damage done to the Senate, McConnell might have chosen to applaud Kavanaugh’s confirmation, express confidence that he would be a fair-minded justice, and tone down the political rhetoric. Instead, he taunted the opposition for the “great political gift” they had given to the Republicans. “I want to thank the mob,” McConnell said, “for energizing our base.” McConnell went on to note, “Nothing brings home the importance of the Senate like a court fight and nothing unifies the Republicans like the courts. Whether you’re a Trump Republican or a Bush Republican or whatever kind of Republican you are, we all think putting strict constructionists on the courts is important.”69
The midterm election results confirmed the stark political divide in America. The resistance to Donald Trump’s presidency sparked an unprecedented level of off-year voting and produced a “blue wave” in the House of Representatives, where the Democrats gained forty seats to regain the majority by a comfortable margin. Nancy Pelosi, who had made history in 2007 by becoming the first woman speaker, would regain the gavel that she had lost in 2010. The Senate, however, remained in Republican hands even though the Democrats won 60 percent of the votes cast in Senate races across the country.70 Heidi Heitkamp, Claire McCaskill, and Joe Donnelly went down to defeat in North Dakota, Missouri, and Indiana, and Republicans Rick Scott and Ted Cruz won election narrowly in Florida and Texas, the two races that were most fiercely contested. The results would further erode confidence in the Senate’s lack of legitimacy, but that was a long-term problem. For now, the results confirmed McConnell’s keen political judgment and his stranglehold on the functioning of American government.
Nonetheless, the postelection period presented the opportunity for a remarkable bipartisan accomplishment. For several years, consensus had been building that the harsh criminal sentencing provisions of the 1990s, imposing mandatory minimum sentences in place of judicial discretion, had proved to be a disastrous mistake. By 2015, more than 1.5 million Americans were incarcerated, disproportionately black and brown Americans, many of whom had received sentences for minor drug offenses. The staggering cost of locking up nonviolent offenders without preparing them to reenter society had produced a broad coalition, from the American Civil Liberties Union on the left to the Koch brothers on the right, that favored major legislative change.
In 2015, Chuck Grassley, joined by Dick Durbin and Mike Lee, had introduced major sentencing reform legislation that had won the support of the Obama administration and strong majorities in both parties. However, Jeff Sessions, then still in the Senate and a strong advocate of harsh sentencing, vehemently opposed the legislation. McConnell, recognizing a division among Republicans and unwilling to give Obama a legislative victory in an election year, had refused to bring the bill to the Senate floor. “It’s one of the things that makes this a frustrating place to work,” said Senator John Cornyn of Texas, the number-two Republican in the Senate, who became a believer in the new approach to criminal justice after seeing the benefits in his home state.71
After Trump’s election, Grassley, Durbin, and Lee persisted. “Mandatory minimum sentences were once seen as a strong deterrent,” Durbin observed. “In reality, they have too often been unfair, fiscally irresponsible, and a threat to public safety.” The unlikely coalition of supporters broadened and deepened. Jared Kushner, Trump’s son-in-law, whose father had been imprisoned, became a driving force behind the legislation, working hard to sell it to Trump, directly and by enlisting those whose voices mattered to the president, including Sean Hannity of Fox News.
With the 2018 midterm elections behind him, Trump became enthusiastic about the possibility of signing legislation that would be a genuine bipartisan accomplishment. “Criminal justice has gone from being the ultimate wedge issue to the most meaningful area of bipartisan agreement,” said Michael Waldman, the president of the Brennan Center for Justice at the New York University School of Law and a frequent critic of Trump on policy. “It’s a strange and ironic twist to have the president’s support push it over the finish line.”72
One obstacle remained: McConnell. The majority leader had refused to bring the bill to the Senate floor before the election, and he remained unwilling to bring it up afterward.73 Estimating that the legislation would require ten days on the Senate floor, McConnell told the president and Grassley that the time would be better spent on his highest priority: confirming additional federal judges. As McConnell consolidated and wielded power, he collected some memorable nicknames, including “the Grim Reaper” and “Moscow Mitch,” but the most consistently accurate might have been “Dr. No.”
Grassley went ballistic. For two years, he had turned the Judiciary Committee into a conveyor belt for Trump’s judicial nominations, and he had persevered through the brutal Kavanaugh fight. McConnell had promised him a floor vote if he could show that the legislation would receive more than sixty votes, and he had many more than that. Now McConnell was telling him there was no floor time for his legislative priority, which had broad bipartisan support and the president’s endorsement. “I think it deserves a floor vote, and McConnell should honor his indication that he gave us that he would bring it up if we could show the votes,” Grassley tweeted. (“McConnell,” he said pointedly, not “the majority leader.”) A few days later, Grassley called McConnell. “I have been there for you,” Grassley said, according to aides who were in the room. “I would hope this is something you would help me make happen.”
Libertarian supporters of the legislation lobbied McConnell constantly. “We are keeping up the pressure on him to make sure he is good on his word,” said Jason Pye, the vice president of legislative affairs for FreedomWorks.74 Rand Paul, in an interview, asked McConnell to “look at the people who are coming at this from all walks of life and hear all our voices saying we want this legislation.”75
On December 11, McConnell reversed his course, announcing that he would allow the First Step Act to come to a vote. “When you have a president do something that seems out of political character, it can sometimes make a historic difference,” Durbin said.76 McConnell had feared that the legislation would take up ten days of floor time; the debate was completed in an afternoon. Grassley, Durbin, and Lee had promised to produce at least sixty votes; the legislation passed by an overwhelming vote of 87–12.
Jared Kushner also received accolades for his tireless efforts to bring his father-in-law along. “There was a constant back-and-forth with Sessions, and Kushner won that battle,” said Representative Hakeem Jeffries, a rising star among House Democrats. “Getting meaningful criminal justice reform over the finish line . . . would not have occurred without substantial leadership from Jared Kushner.” Grassley and New Jersey senator Cory Booker, who had been at sword’s point during the Kavanaugh hearings, embraced. The celebration was a reminder of what bipartisan legislative accomplishment felt like.77 “The bill in its entirety has been endorsed by the political spectrum of America,” Durbin said exultantly. “I can’t remember any bill that has this kind of support, left and right, liberal and conservative, Democrat and Republican.”78
A deeply divided Capitol had come together for the first time in years, to address a fundamentally serious failure in the way that our country enforced our laws and administered justice. A vital aspect of effective governance is to look realistically at its performance, acknowledge problems, and work to rectify them. Legislation often produces unanticipated results; government needs to be able to respond, even if slowly, to offer needed changes. In this case, many politicians, after much soul-searching, realized that the well-intentioned solutions to crime adopted in the 1990s had proven to be wrong. They had listened to the judges whose hands had been tied by sentencing guidelines, the prisoners who had been subjected to excessive and discriminatory punishments, the families that had lost hope that their sons would be treated fairly, and the advocacy groups who were on the front lines every day, working to help those who had been imprisoned to reenter society. They admitted their mistakes and crafted legislation to make important changes in the system.
It was an inspiring moment for everyone—except Mitch McConnell. Although he ultimately voted for the legislation, there is no evidence that he cared about the deep and complex problems that Grassley, Durbin, Lee, and the others worked for years to address. He cared only about keeping the Senate Republican caucus together. McConnell had worked for eight long years to obstruct government from acting while Obama, a Democrat, was president. His basic political calculation was sound; gridlock would hurt the Democrats and help the Republicans. But now, with a Republican president, McConnell was still locked in concrete; it took an enormous, unified, last-minute effort by everyone up to and including President Trump to move him. It was almost as if he hated the idea that the Senate should respond at all to the nation’s problems.
That singular moment of bipartisan accomplishment stood in stark contrast to the turbulence and conflict as Trump finished his second year. On November 7, Trump fired Attorney General Jeff Sessions. Trump valued loyalty above all else, and he had never forgiven Sessions for recusing himself from the investigation of Russia’s interference in the election. On December 8, Trump nominated William Barr, who had served as attorney general in the administration of George H. W. Bush, to do the job a second time. Barr, a familiar mainstream figure who had become wealthy as Verizon’s general counsel, struck Republicans as a reassuring choice. However, Democrats were troubled that Barr had sent an unsolicited memo to the White House, expressing an expansive view of presidential power, in which he questioned whether Mueller could investigate Trump for obstruction of justice.79 To many, it looked like a job application in which the applicant was making a promise to put the president’s personal interests ahead of those of the nation.
On December 18, the same day the Senate passed the First Step Act, Secretary of Defense James Mattis, the most respected member of the cabinet, resigned in protest over the president’s decision to withdraw all US troops from Syria, a decision that had triggered a firestorm of opposition from Republicans as well as Democrats. Mattis’s departure removed from the administration the single strongest constraint on Trump’s impulsiveness in the national security area. Military leaders feared that a precipitous withdrawal would jeopardize the territorial gains made against ISIS, essentially repeating what had happened when Barack Obama had withdrawn US troops from Iraq in 2011. Lindsey Graham, who had become one of Trump’s strongest supporters, called it “Iraq all over again. . . . If Obama had done this,” Graham said, “we’d be going nuts right now; how weak, how dangerous.”80 The decision was also seen as a betrayal of the Syrian Kurds, who had been our strongest allies in the fight against ISIS, and as ceding a crucial region to Russia and Iran.81
At the same time, Trump advised the country that he was prepared to shut down the government unless the Democrats provided $5.7 billion for his border wall. When Senate Democrats resisted, Trump pressed the Senate to eliminate the filibuster so that the border funding could be accomplished with fifty votes. McConnell, who had repeatedly predicted that there would be no shutdown, showed no interest in changing the legislative filibuster.82 The Democrats continued to reject Trump’s demand, and on December 21 the federal government shut down. “The shutdown is an appropriate end to a period of unified Republican rule of the White House and both chambers of Congress that has been marked by dysfunction and infighting, and a mercurial president whose shifting positions and whims have scuttled legislative deals,” the New York Times reported.83
The first year of the Trump presidency had ended on a triumphant note, but year two ended with the federal government shut down, the Justice Department and the Pentagon leaderless, Robert Mueller and his team working intently, and a Democratic House set to arrive that would pose a constant threat to the president. Amid the chaos, the one constant remained Mitch McConnell, celebrating the Kavanaugh confirmation and running an unprecedented number of ideological and young right-wing judges through the Senate.