A new book details the lengths Justice Anthony Kennedy went to keep secret his plans to retire from the Supreme Court last year, a move that would kick off a bruising fight over confirmation of his replacement, Justice Brett Kavanaugh.
The book, Justice on Trial: The Kavanaugh Confirmation and the Future of the Supreme Court, describes the plan Kennedy set in motion to tell President Trump and his fellow justices of his decision to step down from the high court in June 2018 and avoid any leaks to the press.
Kennedy first informed his former clerk Steven Engel, who heads the Justice Department’s Office of Legal Counsel, he would retire during a discreet meeting at an outdoor cafe near the National Gallery of Art’s Sculpture Garden two days before the end of the Supreme Court’s term.
The justice planned to inform his colleagues of his retirement after the Supreme Court’s final sitting on June 27, 2018, and wanted Engel to ask then-White House counsel Don McGahn to set up a meeting with the president without raising suspicions, according to authors Carrie Severino, chief counsel of the Judicial Crisis Network, and Mollie Hemingway, senior editor at The Federalist.
The White House Counsel’s Office and Jeffrey Minear, counselor to Chief Justice John Roberts, arranged the meeting, and after Kennedy informed his fellow justices at their end-of-term luncheon he would be leaving the high court, a black car with a pre-cleared driver from the White House Military Office took him from the Supreme Court to the White House to sit down with the president.
Kennedy and Trump met at the Executive Residence and spoke for roughly 20 minutes, according to Severino and Hemingway, after which the justice gave the president a letter containing his formal resignation.
President Trump, Severino and Hemingway wrote, “was surprised by Kennedy’s retirement but not unprepared.”
Kennedy then returned to the Supreme Court, “no one the wiser as to what had just taken place,” according to the new book.
“The biggest secret in town had remained a secret until the end,” Severino and Hemingway wrote. “Justice Kennedy was retiring on his terms. The news was then released, and it rocked Washington.”
The White House had developed a relationship with Kennedy prior to his retirement and sought his opinion on former clerks they were considering for spots on the federal bench, according to Justice on Trial. Several had been tapped to the federal courts of appeals and Justice Neil Gorsuch, also a former clerk, was appointed by Trump to the Supreme Court.
When the White House learned Kennedy was “displeased” one of its picks for the federal judiciary called him a “judicial prostitute,” the nomination expired, Severino and Hemingway wrote.
Trump’s team during the 2016 presidential campaign also sought input from Kennedy when it compiled a list of potential Supreme Court candidates. Kennedy “was eager to help,” Severino and Hemingway wrote, and provided the names of at least six former clerks. Kavanaugh, who Kennedy described as “brilliant,” was among those recommended by the justice.
Trump ended up selecting Kavanaugh in July 2018 to fill the seat vacated by Kennedy. But prior to doing so, the White House sought the views of five senators: Republicans Lisa Murkowski of Alaska and Susan Collins of Maine, and Democrats Joe Donnelly of Indiana, Heidi Heitkamp of North Dakota, and Joe Manchin of West Virginia.
Only Collins and Manchin voted to confirm Kavanaugh, and Collins faced significant backlash after delivering a floor speech announcing her intention to do so. The morning of the Senate’s final vote, Collins apologized to a neighbor for the singing and chanting of protesters camped outside her house. The neighbor said the protesters’ songs and chants were “beautiful,” Severino and Hemingway wrote, but called Collins a “rape apologist.”
The derogatory name stemmed from allegations of sexual assault lodged against Kavanaugh by Christine Blasey Ford, which upended his confirmation process.
Kavanaugh vehemently denied the accusations, and after an FBI investigation yielded no evidence to corroborate Ford’s claims, he was confirmed by the Senate.
