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MIRED

A new book on Brett Kavanaugh is igniting fights before it’s even hit the shelves

Kavanaugh, Kennedy, Trump, and Kavanaugh's family at the White House.
Brett Kavanaugh is congratulated by Anthony Kennedy at his swearing-in ceremony last year.
  • Ephrat Livni
By Ephrat Livni

Senior reporter, law & politics, DC.

Washington DC

The controversy surrounding US Supreme Court justice Brett Kavanaugh’s confirmation hasn’t entirely died down in more than a year since the Senate hearings on his appointment. Now, a new book about how the junior justice made it to the bench is reigniting fights about president Donald Trump’s nominee—and it hasn’t even hit bookshelves yet.

The book, by Washington Post columnist and deputy editorial page editor Ruth Marcus, is called Supreme Ambition: Brett Kavanaugh and the Conservative Takeover. In it, she reveals that retired justice Anthony Kennedy, who Kavanaugh replaced on the bench, personally recommended the younger jurist to Trump. Kennedy didn’t decide to retire until his pick was securely on Trump’s list, according to the book, which is slated for release next month.

In Marcus’s account, Kennedy reportedly pulled Trump aside after the 2017 swearing-in ceremony for Justice Neil Gorsuch in the Rose Garden to suggest Kavanaugh take the next available spot—the one Kennedy himself would soon vacate. “The justice’s message to the president 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,” Marcus writes.

Conservative commentators, however, say that Marcus’s claims about Kennedy are patently false. “Anybody who knows Justice Kennedy knows that he would never offer unsolicited advice about who ought to succeed him, and anybody who says it is just being ridiculous,” said Leonard Leo, chief of the conservative legal group the Federalist Society, on Fox News. Leo played a public role in guiding Trump’s justice picks.

Notably, Marcus’s book also targets Leo, saying he urged Trump to pick an alternative nominee when Kavanaugh’s confirmation was nearly derailed by accusations that he sexually assaulted Christine Blasey Ford in high school. Leo said this, too, is false. “I’ve had a very longstanding friendship with Brett Kavanaugh, going back to the late 1980s. Anyone who knows my friendship with Justice Kavanaugh knows this is simply absurd.”

If Leo had suggested someone else in light of the controversy, it might not have seemed so unreasonable. But it would indicate that he didn’t think Kavanaugh’s confirmation was a hill worth dying on and reveal a division in the ranks that conservatives would prefer not to show.

Marcus told the outlet that she stands by her work. And it should be noted that many of the sources Fox News cites to debunk her account spoke confidentially, which somewhat undermines their arguments that the author invented “new and exciting storylines” without proof.

In any case, the focus of Marcus’s book, according to her Washington Post colleague Robert Barnes, is not on Kavanaugh, or Kennedy, but rather on Kavanaugh’s confirmation as the culmination of a long and concerted conservative campaign to turn the high court, and the rest of the American judiciary, rightward. That, in and of itself, is hardly a novel concept, but it’s also indisputable.

Republicans have long been vocal about their intended judicial takeover, so much so that many Democrats lament the left’s failure to copy conservative tactics, even if they do require a “ruthless disposition” and a very long view. Indeed, just last week at a Federalist Society banquet that Kavanaugh and other conservative legal luminaries attended, where this reporter happened to be sitting near Marcus, senator majority leader Mitch McConnell spoke openly about his determination to fill every vacancy on the judiciary with “Republican judges,” to the apparent delight of 3,000 cheering lawyers.

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