Brett M. Kavanaugh

No modern justice traveled a straighter Washington road to the Court, and none arrived through a wilder storm. When Brett Kavanaugh first came before the Senate, for a court of appeals seat in 2006, Senator Richard Durbin dismissed the resume as the point: he was 'the Zelig or Forrest Gump of Republican politics. You show up at every scene of the crime,' Durbin said, 'whether it is Elián González or the Starr Report, you are there.' The gibe was fair as biography; the capital's partisan wars supplied most of his early employment. As prophecy it failed completely. The operative of the 1990s has become, by the plain arithmetic of votes, the least contrarian member of the modern Court, and the justice most often inside its majorities. Reconciling the road, the storm, and the record is this chapter's work.

Brett Michael Kavanaugh was born in Washington, D.C., on February 12, 1965, an only child. His father, Everett Edward Kavanaugh Jr., was a lawyer who spent two decades as president of the cosmetics industry's trade association; his mother, Martha, taught history in the District's public high schools, took her law degree at American University in 1978, and became a Montgomery County prosecutor and then a Maryland circuit judge. 'My introduction to the law came at our dinner table when she practiced her closing arguments,' he said on the night of his Supreme Court nomination; her trademark line, he recalled, was 'use your common sense, what rings true, what rings false.' He was a basketball captain and football player at Georgetown Preparatory School, class of 1983, two years ahead of a student named Neil Gorsuch (§113); one Jesuit high school now holds two of the Court's nine seats.

At Yale College he majored in history and wrote for the Yale Daily News; at Yale Law School he was a notes editor of the journal, graduating in 1990. Three clerkships followed, with Judge Walter Stapleton of the Third Circuit, Judge Alex Kozinski of the Ninth, and, after a year in the Solicitor General's office, Justice Anthony Kennedy (§104) in October Term 1993, a chambers year he shared with Gorsuch, who was clerking that same term. Then came the decade Durbin would later inventory. From 1994 he served Kenneth Starr's Office of Independent Counsel, leading the reopened investigation of Vincent Foster's death to the same conclusion of suicide the first inquiry had reached, and serving as a principal author of the Starr Report's grounds for the impeachment of President Clinton. He made partner at Kirkland & Ellis between tours, where the Durbin inventory was earned literally: he represented Elián González's Miami relatives without fee in 2000 and worked the Florida recount for the Bush campaign that fall, and joined the new administration in January 2001, first in the counsel's office and from 2003 as staff secretary, the aide through whose hands every paper reaching the President's desk must pass. In 2004 he married Ashley Estes, the President's personal secretary; they have two daughters, Margaret and Liza.

Bush first nominated him to the District of Columbia Circuit, to Laurence Silberman's seat, on July 25, 2003. The nomination sat for nearly three years, twice returned without a vote, while Democrats argued that a political operative was being made a judge; it was in those hearings that Durbin delivered his line. Confirmed 57–36 on May 26, 2006, he spent twelve years on the D.C. Circuit and wrote some three hundred opinions, taught at Harvard Law School at the invitation of its then dean, Elena Kagan (§112), and built the shadow record that mattered most: dissents addressed to a future Court. His 2011 dissent in Heller II argued that gun laws must be judged 'based on text, history, and tradition, not by a balancing test such as strict or intermediate scrutiny,' the method the Supreme Court itself adopted in Bruen a decade later. His dissent in PHH v. CFPB, on the President's power to remove agency heads, prevailed in substance in Seila Law. By the time Justice Kennedy announced his retirement on June 27, 2018, the former clerk was the obvious heir, and Trump named him on July 9.

Then came September. Christine Blasey Ford, a research psychologist, alleged that at a small gathering in 1982, when she was fifteen and Kavanaugh seventeen, he had pinned her to a bed, groped her, and covered her mouth; he denied the allegation absolutely. On September 27, 2018, both testified before the Judiciary Committee in a session watched by tens of millions. Ford, asked for her strongest memory, answered: 'Indelible in the hippocampus is the laughter, the uproarious laughter between the two, and their having fun at my expense'; asked her degree of certainty, she said '100 percent.' Kavanaugh answered: 'I categorically and unequivocally deny the allegation against me by Dr. Ford,' and read an opening statement of unprecedented heat for a judicial nominee, calling the previous two weeks 'a calculated and orchestrated political hit, fueled with apparent pent-up anger about President Trump and the 2016 election,' fear about his record, and 'revenge on behalf of the Clintons,' adding that 'what goes around comes around.' A supplemental FBI inquiry lasting a week reported to senators and satisfied the decisive votes; cloture carried 51–49; and on October 6, 2018, he was confirmed 50–48, Joe Manchin the lone Democrat in favor and Lisa Murkowski voting present, the narrowest margin for a justice since Stanley Matthews's one-vote confirmation in 1881. What happened in 1982 the public record cannot establish; the allegation was never corroborated to the Senate's satisfaction and never withdrawn, and this chapter records the transcript rather than adjudicating it. That evening, as protesters beat on the Court's bronze doors, Chief Justice Roberts (§109) administered the constitutional oath and the retired Justice Kennedy the judicial oath, and the clerk now held his teacher's seat.