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Marc Short
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Marc Short
Chief of Staff to Vice President Mike Pence
Marc Short is chief of staff to Vice President Mike Pence. He previously served as a legislative assistant to President Donald Trump.
This interview was conducted by FRONTLINE’s Michael Kirk on January 8, 2019. It has been edited for clarity and length.
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Justice Scalia’s Death and McConnell’s Gamble
Let’s start with the death of Justice [Antonin] Scalia and Mitch McConnell’s decision to come right out as fast as possible and say: “It’s the last year of this presidency.I think the president should defer the naming of a nominee.”Help me understand what that looked like to you.
I think when Justice Scalia passed, Leader McConnell had a choice, which was that for many Americans, the balance of Supreme Court was essential to who they chose for president of the United States.And obviously, the passing in the beginning of a presidential election year was a decision to say, “We’re going to hold off in having any sort of vote until the election is completed.”Certainly it’s a partisan decision that is viewed very controversially.But I don’t think there's any doubt that it did create an avenue for a lot of new voters to come on board the Trump campaign, because certainly there [were] a lot of conservatives who were reluctant to support Donald Trump.But the president made many different overtures toward them, some to the evangelical community, some on the national security front, some on the economic front.But there's no doubt that putting forward a list of 21 potential justices from which he would choose gave comfort to a lot of conservatives to say, “This is important enough that I want to get behind Donald Trump for president.”
Let’s go back and break that down, because that’s where we were going next anyway.Help me just a little bit with McConnell and how McConnell is situated at that time.This is spring of 2016.There's a GOP debate that night.Seventeen or 16 of them are going to be on the stage.They're all going to be expected to have some answers, which is part of, I think, what was driving McConnell to get right out there in front and state a position.But help me understand Mitch McConnell and his view of judges, his interest in the court across the board.
Well, I think there's no doubt that when people write the history books on the Trump presidency, one of the most important factors will be the way that he reshaped the court, and there's no doubt that Mitch McConnell was an essential part of that, and not just from the Supreme Court, but the record number of circuit court judges and federal judges that Mitch McConnell has confirmed.And that has always been a passion of his, and it is certainly part of his legacy as well.
I think when Mitch McConnell made the statements he did, in part it was a signal to the presidential candidates, but I think it was also a message he was sending to the Republicans in the Senate to say: “Don’t get ahead of me on this.This is the position that we’re going to have, and I expect my conference to fall in line with this position.”
Trump’s List and the Role of the Federalist Society
Trump comes to town, I think on the 16th of March.He sees McConnell.They have a conversation.He goes to Jones Day.He sits with Don McGahn and others from—Leonard Leo and others from the Federalist Society.Help me understand what those conversations were, about how important they were.
To be fair, Mike, I joined the campaign in the summer when Vice President Pence was tapped, so I was not on the campaign at that time.I joined the campaign roughly July 1, when Pence was tapped, so I don’t have much insight as to what that meeting looked like or who was in there.
OK, so you can certainly help me understand the importance to candidate Trump of coming out of that session with a list of potential Supreme Court nominees.
I don’t think that people probably realized how important that list would be.I think that in a lot of ways, it was the most transparent a candidate has ever been.It’s not simply saying, “Here is the type of jurist I would look for; here is the record of the court.”It’s, in fact, “Here is my list of 21.”And so I think that it gave comfort to a lot of conservatives to say, “I can get behind this campaign.”
And when Obama comes along and says—we've been inside this process a little bit with the Democrats—he’s sort of, “Do I come out with a firebrand and go against McConnell and the Republicans, or do I come out with somebody that I think is going to be really hard for them not to allow to walk around and meet other Republicans, somebody like Merrick Garland, for example?”What were your thoughts, looking at it from a distance—and you were on one of the campaigns at the time—about Obama’s strategy in that moment?
I think that President Obama’s choice of Merrick Garland was a reasonable choice, and I think that in some ways, it put additional pressure on Republicans, because, as you say, it wasn’t a firebrand.It was somebody who had a more moderate record, a more moderate tone, and somebody that, in many cases, the media would say was a—was a compromise choice.So I think that the selection of Merrick Garland by President Obama was a smart political move.But because Democrats had been on the record before saying that they would object to a nominee being put forward in the middle of a presidential election year, I think that gave Republicans a lot of support for the position they took.
Talk about words that Joe Biden (D-Del.) wishes he could pull back, right?
Perhaps.
Tell me a little bit about what you know about the power, sway, influence and importance of the Federalist Society in these decisions.
Well, I think that the Federalist Society has been an important part of the conservative movement for some time, and Leonard Leo has been a great president for that organization.He’s galvanized a lot of people behind an originalist viewpoint of the Constitution, so that is a growing sector of the conservative movement.But certainly I think what’s happened in the last couple of decades, which your film is focused on, is the politicization of these picks.And so therefore, the way that Congress or the Senate has politicized the nomination process gives more and more credibility to groups like this, who are focused on the judiciary.
And to somebody who’s learning the ropes like Donald Trump was, when he was a candidate—I know you're not there, but you're watching this happen—how important is that probably to him, from what you can sense?Here’s a guy who hadn’t really played in this sandbox before.
Well, I think that a lot of people underestimated Donald Trump's strength, particularly in the heartland of America, people who were so frustrated with the way Washington was broken.And they wanted an outsider to come in and disrupt the system, which clearly he's been doing.But there are certain parts of the conservative movement who were more philosophical, who still had reservations, believing that Donald Trump had not always been one of them, and some of the positions he had had in the past were not consistent with their viewpoints.So therefore, having in some ways litmus tests, if you will, or a list of jurists that you would choose from, says, “OK, here's my—here's my compact with you, conservative movement, that this is what I will choose from.”And that certainly helps to build the right coalition if you're looking to be elected president.
McConnell’s bet that Hillary Clinton might not win and really appoint somebody different than Merrick Garland is a big bet at that moment, as we go across the summer and head into the Election Day in the fall.
You know, I think that, for a lot of conservatives, there's a viewpoint that Democrats have continually nominated candidates who stick together on the Supreme Court.But there's a lot of weariness among conservatives that Republican presidents have nominated candidates who don't end up being conservative on the court.So I think for Mitch McConnell, actually, there was very limited downside, because if President Trump had not won, then the likelihood is still the Democrats are going to put forward a candidate who is going to be sticking with the [Ruth Bader] Ginsburgs and the [Stephen] Breyers of the court, so I think that there was kind of very little downside for the position he took.
On election night, big surprise for all of us.And I suppose after he was happy that he held the Senate, McConnell was probably super-happy, if he has an interest in judges, to understand that there was going to be a Republican president like Trump, who he'd made a pact with about how to get real conservatives on the court.
I think that Leader McConnell, having a Republican Senate and a Republican president, believes that his decision certainly is going to be impactful for generations to come.And I think his partnership on the [Neil] Gorsuch confirmation, and the [Brett] Kavanaugh confirmation, certainly is going to be a huge part of Mitch McConnell's legacy.
Help me with the understanding when you finally joined up there in your office.How does the workflow work?Where’s [Don] McGahn in the process?Where are you?Where's McConnell?As Gorsuch comes along, and as the talk of appeals court judges and district judges is happening, what are you observing?How does it work?
I think that Don deserves an enormous credit for the president's record on judicial nominees.And this was something that certainly was very important to him.And the White House Counsel's Office played probably an outsize role in the Trump White House.I think that typically, in previous White Houses, there's a more collaborative process that includes a political affairs view of, “OK, what is our nominee?How is that going to play out in certain states, and how has that put certain senators in a difficult or compromised position?”There's a legislative affairs perspective that says: “Here is the pathway forward.Here is where I see the votes coming or not coming.”
The Trump White House, particularly in the beginning, it's been well documented that there was certain different factions operating inside that White House, so that process wasn't as formalized as it has been in previous White Houses.Nonetheless, I think that our leg. affairs team worked very closely with the [White House] Counsel's Office, once Gorsuch was selected, in helping to steer that nomination through.
What was the mandate?I mean, Gorsuch was not on the list.Kavanaugh was not on the original list in the first place.Why not?What changed?
I think that Judge Gorsuch came forward with something that provided everything that the conservatives would hope for in a nominee, and I think his record was so stellar that it would be difficult to find objection to him.So, I think, at the end of the day, when Democrats in the Senate made the decisions that they did to change the voting process of getting the necessary 60 votes, I think that it resonated with the Americans that this was being an unfair process.
Politicizing the Nomination Process
So, what was the impact of, in the first case of Sen. [Harry] Reid's [D-Nev.] decision to not require 60?I've even read somewhere or heard somewhere that Leader McConnell said: “Are you sure you want to do this?You don't really want to do this.”To the extent that you know that story, help me with that story.
Sure. So I think, unfortunately, the nomination process has become so politicized that it's no longer about the candidate’s merits, and it's far more about the politics of the nominee.So, for instance, even as your documentary probably unveils, Clarence Thomas was confirmed 52-48.He never was required to get a 60-vote threshold to end debate and move to final passage, so that was always the process in the United States Senate, is there was not a 60-vote threshold required to end debate.In recent years that has been thrust upon us in a way to say we need to have a more consensus pick, and we need to, because it's so political, not just get a majority vote, but a 60-vote threshold.
So when Harry Reid changed the rules in the Senate on appellate court judges to say, “I'm moving forth with majority only,” it created the opportunity for Republicans, once they were in control, to do the same thing on Supreme Court nominations.It no longer was considered as dramatic a change in rules, because Harry Reid had already changed the rules on appellate court judges previously.
Imagine he rues that day?
I don't want to imagine about Harry Reid's, where he is or where he's not in the—
But it certainly—so I’ll ask it another way. So, the impact of Reid’s decision in terms of the positive column for conservatives?I think there were a lot of Democrats who cautioned Harry Reid at the time that making the changes to going nuclear, so to say, and changing the rules of the Senate on these confirmations could backfire.And I don't know that it backfired, but I do think what we've reached is, again, a point where no longer a judge is really being assessed on the merits that they bring, but instead it's become far more political in evaluations for senators to look at a nominee.
So now we've reached a point where it's—we've hopefully reached bottom in this process, because no longer is it—is it getting 60 votes.I mean, now it is required to get 60 votes to actually move to a final passage, as opposed to everybody simply looking at it and saying, “OK, I may or may not agree with the jurist’s viewpoint, but the person's qualified.”Now it's a referendum on, “Do I personally agree with the way that this person's going to rule?”
Brett Kavanaugh and Mitch McConnell’s Ticking Clock
Yeah.Take me into the moment where President Trump is offered Kavanaugh as his second pick.Help me understand.
Well, to be fair, I wasn't in the middle of that conversation with the president.I think that's a conversation that White House Counsel Don McGahn had directly with the president.But I believe that, at that point, as you recall, we would—Republicans would have lost the Alabama Senate seat.So now the margin is 51-49, there's very little room to play with.And so there's a belief that we need to make sure that we put forward somebody who is a—who has a very narrow path to confirmation, who has the credentials.And so looking at his Ivy League pedigree, and the way that he's already been confirmed by the Senate, that's an important factor, and has been serving in the appellate court.There was a belief that this is a candidate who stands an easier path forward.Obviously it was not an easy path forward, but the belief going in was, we need to find somebody who can—who can skate through that 51-49 margin.
He meets with the president, and it doesn't go particularly well in that very first meeting.There was then a second meeting, and his wife comes to the meeting.Do you know what the problem was from the first to the second meeting?
I don’t. I don’t know, honestly.
Now let’s talk for a minute about the rough road that did lie ahead, but not about Dr. [Christine] Blasey Ford yet.He was coming out of the Bush administration.He had a paper record that was unlike anything anybody had ever come forward with.A cause of concern in the early going, when you all were thinking about how to bring him forward?
Absolutely, Mike. I think at that time, Justice [Anthony] Kennedy's, I think, retirement and the timing of it perhaps was a surprise.I think at 82 years old, everybody has to be assuming it could happen, but the fact that it happened at the very end of session, with only a couple months before the midterm elections, that's—that’s difficult to get—to get a nominee confirmed within that time frame.If a nominee has a voluminous amount of papers, not just from the court, but also having served in the White House, then that is a more—that probably presumes a lot more time to get the confirmation through.So there were some senators who had expressed going with Kavanaugh would create a time challenge in getting this completed before the midterm election.
I know Leader McConnell was very worried about the ticking clock, that, as you say, this is a tough mountain to climb.
Ironically, one of the things that aided the confirmation process was the decision by Republicans to abandon the August recess.That was something that, unrelated, we'd been asking for for some time, because Democrats in the Senate had taken a position of basically wanting to oppose all the president's nominees…
So, Democrats' obstruction, there was a position that we'd advocated to Leader McConnell to say, “We need Republicans to stay in and force them to give up the August recess, and then maybe Democrats will relent.”Ironically, their position of obstruction on our other nominees had created a pathway that we'd already decided to get rid of the August recess.That extra month was essential to getting Kavanaugh confirmed before the midterm election, because he was able, during August, to go meet with all the senators on the Judiciary Committee.He was able to begin some of the process of putting together the questions and the answers they needed to set up the hearings.That's an invaluable month that obviously wouldn't have been there otherwise.
Almost right away, as soon as his name is brought forward, the Democrats are just all over it.You're talking about not necessarily examining a candidate’s or a nominee's qualifications and character.Suddenly it's: “He's evil.This is unbelievable.I'll do everything I can to stop him.”All the members of the committee, the Democratic members of the committee, really forcefully coming out.What was your response to that?What were you thinking was up?
Well, let's keep in mind that I think both sides knew that the Supreme Court battle was going to be huge over these last two years, not just with Kavanaugh, but also with Gorsuch.So it appears to me that both Leader McConnell and Sen. [Chuck] Schumer (D-N.Y.) put forward some of the more partisan people on Judiciary Committee to prepare for that.So it's really not a surprise that, no matter who the president nominated, the Democrats on committee, having the most partisan Democrats on that committee, were going to come out aggressively against the nominee.
I think perversely, would that incents any president to do, is to not try to find the compromise candidate anymore.It incents the president to actually go forward with, “I'm going to choose a firebrand, because no matter who I put forward, they're going to demagogue.”And I think by all accounts, Kavanaugh is not that firebrand.But because he gets the same treatment, then what's the incentive moving forward to find a consensus candidate?
And why are the Democrats doing it?Why did they act that way?I mean, wouldn't you think, well, let's work with these guys, figure this out, right?Why would they do that? What's up?
I think that the reality is that the Democrat base is so opposed to President Trump that there's a danger, politically, for members in the Democratic Party to be seen working with the president.So therefore, if they're going to keep their political base, they want to be opposed.And so I think in many cases, it's less about the nominee and Brett Kavanaugh, and it’s far more about the president.
In the face of the ticking clock, what is McConnell up against?What are the stakes?What happens if he doesn't deliver?
You know, obviously, a midterm election is one in which, when one party controls the House, the Senate and the White House, as Republicans did leading into that midterm, typically voters go the other way.They prefer divided government.So a lot is at risk.As it turns out, Republicans ended up gaining a couple seats in the Senate, but at the time, nobody knew that, so there was certainly a pressure to say, “Can we complete this before the midterm election?”
Anything about Kavanaugh that you were hearing, that everybody was worried about?
No, I think that from the administration perspective, the belief was that a very clean candidate had been found.So I think that a lot of the drama that played out in the midst of the hearings was something that was surprising to a lot of people.
They tell us that to get to the moment where you're sitting in the hearing room is 90 percent of the road, right?You're basically there if you find yourself sitting there.But I've watched the videotape a couple of times now of that very first day where [Chuck] Grassley's (R-Iowa) just tapping the thing, saying, “All right, everybody.”And the reporters were stepping back; the photographers were stepping back.And suddenly the Democrats are just unleashing a virulent attack on the speaker and on the Republicans.Tell me why.Tell me what that tells us, that that was happening that way on that very first day.
Well, again, keep in mind that some of the Democrats on the Judiciary Committee are not just the most partisan, but in fact some have presidential ambitions themselves, so they know the stakes.They know that cameras are on them.And in some cases, it’s an opportunity for them to make an appeal to the most active of the base of the Democratic Party.So I think what's partly playing out is actually looking to the future and trying to position for the 2020 election.
Is the president watching those hearings, do you think?
Oh, I'm pretty confident the president was watching them.
And his response probably?
You know, I'm guessing at this point, but I think like a lot of people, surprised [by] the vitriol.I think that none of us is naive to the reality of the polarization that we have, but the extent to which it was as vitriolic as it was, I think was still surprising.
Did you ever meet Kavanaugh?
I did.
Yeah.Do you think he was ready for what was coming?
I don't think anybody could be ready for that.I mean, you can presume, having watched what's happened over the last 30 years, ever since the Bork nomination, you can presume that your life is going to be turned upside down.But I don't think anybody can be prepared for the level that it’s reached now.
When the FBI report comes out after, about a sexual assault allegation, what are you thinking?
I think that, at that point, my belief is that you should obviously investigate everything to its completion.But there's no doubt a cynicism that believes that the allegations against Kavanaugh are politically charged.
And how vulnerable did it seem at the time?
I think very vulnerable.I think that stepping back for a second, looking at the politics, Republicans, I think, know the challenges that we face with many women voters.So, so yeah, it’s very risky.But at the same time, I think you look back, and I think Democrats so overplayed their hand that it actually ended up assisting several Republican candidates in the midterms.If you look at Heidi Heitkamp’s (D-N.D.) place, and Claire McCaskill's (D-Mo.) place, and Bill Nelson's (D-Fla.) place, those are people as incumbents that, that yes, they're running in a challenging state, but a midterm election should be in their favor.
And so I think in many cases, it galvanized Republican voters to say, who are sleepy at the time—I mean, keep in mind, when the Kavanaugh nomination came forward, the left was animated; they're opposed to the Trump agenda, and they're anxious to come out and vote.But the Republicans had been getting what they want.They get a Supreme Court confirmation in Gorsuch.They get a tax cut.They've gotten a regulatory reform, many things that they were promised are delivered on.And so they're kind of sleepy at this point.
And we saw it in all the polling, that there was a complacency among Republican voters.After the Kavanaugh hearing, in the way it played out, Republican voters became energized to say, “I can't believe that that's really what's happening in Washington, D.C.”And so I think in many ways, the tactics by Democrats believing that this was going to play out better for them among women voters actually galvanized Republican voters.Those same female voters who I think oppose the Trump agenda were probably going to come out regardless, right, so I don't know how much more they juiced enthusiasm on their side, but there's no doubt that they energized the Republican Party.
As you watched Dr. Ford testify, your thoughts?
My thoughts were that she was a sympathetic witness.But again, I guess that there's … the built-in cynicism that says, if this was delivered to the ranking member of Judiciary Committee, why didn't she raise it in her meetings with Kavanaugh?Why didn't she share with other Democrats on the committee?Why didn't she go to the chairman of the judiciary to say, “Let's have a full hearing on this,” instead of waiting weeks and weeks and weeks to then bring it out, and to trump—to bring the witness out, I think was, I think, and many people questioned how Dianne Feinstein (D-Calif.) actually handled that.
The position it put the Republican members of the committee in, all men, all white men—help us understand what it was like for them.
I think that there's—it’s a dilemma, right?On the one hand, you should be doing your job and asking questions of the witness, as opposed to delegating that out to somebody else.But on the other hand, you risk, how does it appear, as you say it, if it's older white men asking the questions, then it could come across unintentionally as an unsympathetic way.
But I think as it played out, certainly, Lindsey Graham (R-S.C.) ended up seizing that moment and saying sort of; “The hell with the perceptions.I'm going to step into this because I think it’s a train wreck.”And I think that he played an important role for Republicans that day.
And the president's reaction?
Uh, I don’t know.I mean, again, at that point, I've left the White House.
Yeah, you know him pretty well.
I think that certainly that the president believes that he made a good pick in Kavanaugh.He believes that Kavanaugh was unfairly treated, and I think believes that he's going to be a good justice.So I think watching the hearings, I think he's probably feeling sympathy for what Kavanaugh's family is going through.
… So Kavanaugh comes out.What did you think?Were you surprised by the way he played it when he came out and responded to the allegations?
No.I think that if those were unfounded allegations, then I think anyone would respond that way.Not only is it assaulting your character, but it's basically maligning your reputation in front of your family.So I'm not surprised with the way he came out.I think people will all second-guess as to whether or not it was too emotional or not, but I can't criticize it.I think that if someone believes you've been attacked unfairly, then it's only natural to respond.
Let's go back to McConnell now, and go and step up to 30,000 or 20,000 or 10,000 feet, wherever the Leader McConnell is during all of this.He's got a clock ticking.He's got a committee.He's got a guy that's 90 percent of the way there, and suddenly this is all starting to happen.What can the leader do?What was he doing, from what you can tell, during that time?
Well, I think that the leader is the one who’s … the president is going to lean on for saying where are the votes.And so there’s certainly a position he's in to say, “I think we need to recalibrate and start over.”But there's a huge risk in that, too.And as I say, I really think Democrats overplayed their hand, and I think that Leader McConnell recognized that the way that they were attacking Kavanaugh was something that was playing in a way that was galvanizing the Republican base that was actually pretty complacent heading into that battle.So I think for—I presume, for Leader McConnell, there was every incentive to say, “We're sticking with Kavanaugh.”
The headcount.He's a good counter.You've done that before in your life.What was he up against at the beginning of those hearings?And I mean, how narrow was the margin of what he had to have?
I think that one of the things we did for both the Gorsuch confirmation and for the Kavanaugh confirmation is that we brought individual senators in to meet with, in the first case, the vice president; and the second case, the president.So let me try and break that apart.When Gorsuch was nominated, it was in the midst of the transition.And so the vice president, in his role as vice president, the president determined would be kind of the lead on Capitol Hill in a lot of things.
So the vice president sat down with those senators who we viewed as swing voters, both on the Republican and Democrat side, and we basically asked, “What you would like to see in a nominee?”And we got that feedback.We did the same thing with Kavanaugh, in this case, bringing in individual senators to meet with the president.And so I think we knew who was going to be those senators who are on the fence.
Who came in?
We had individual meetings with Sen. [Susan] Collins (R-Maine), [Lisa] Murkowski (R-Alaska), [Joe] Donnelly (D-Ind.), Heitkamp, [Joe] Manchin (D-W.Va.], and I think that the outliers there would be senators like Sen. [Jeff] Flake (R-Ariz.), who certainly, I believe, has always been a conservative, but his animosity toward the president is certainly well known.And so he's in a different position altogether, where it's really less about the nominee's judicial philosophy, and it's more about how does this play out in his relationship with the president.
So for anyone trying to count the votes, there's multiple factors playing.Part of it is individuals’ re-election, because you had some members like Sen. Donnelly, Sen. Heitkamp, who were up for re-election in 2020; some who had judicial opinions, particularly as it relates to Roe v. Wade, and that related to Murkowski and Collins.But then you had some who it was just a personal dynamic, that it was a little bit harder to address.So for Leader McConnell, it's figuring out, OK, how do I assuage all these different factors to get to the necessary 51 votes?
And the president, how does he handle those meetings?What's that like?
I think the president was very engaging and just asking what is it that they would like to see.It’s less intended to go specifically and say: “Here's a name.What do you think?”It's more of a “What is it that you're looking for?”And again, after having confirmed Gorsuch, there would be some who would express opinions about Roe v. Wade.But there were some who had, I think, a unique position, which was, when you're replacing Scalia, I'm comfortable with a more conservative pick.Replacing Kennedy, I'm looking for somebody who is more of a consensus builder.So there was a couple of different opinions expressed back.
So by the time Blasey Ford has testified and Kavanaugh has testified, you're sitting there in your den or office or wherever you are, watching it all play out.What was the headcount from your perspective at the end of that Friday?
I think it was pretty close to where it ended up.And honestly, because I think that Kavanaugh had done enough to keep Republican votes in check, candidly, I think that the biggest moment to assure that was Senator Collins’ floor speech.I think she very magnificently went through the reasons for how she reached her conclusion.And I think did it in a way that no other Republican could have.And I think that she deserves enormous credit for helping Mitch McConnell and the president get Kavanaugh confirmed.
Having said that, for that similar reason, I was surprised to see Lisa Murkowski vote against Kavanaugh.That was a surprise to me, because I sort of assumed that she would stick with Susan Collins.But I would have presumed that he would have gotten one or two Democrat votes as well at the end of the day.
Can we go back, just for a moment, to the Flake elevator moment, and then the Flake-[Chris] Coons (D-Del.) moment, and then the FBI investigation moment?Did you happen to see the elevator moment in real time?
Not in real time, but I saw it later.
And your thoughts?
I think that if it's a true human moment that, when you're seeing constituents pressure the way you are, the way that they were, that there would be a gut check on that.I think again what was an additional consideration for Flake was his relationship with the president, and I don't think that that can be detached from the conversation.So I think he had plenty of reasons in his own mind as to a reason to slow down the confirmation process.
What were you thinking?What were you thinking was going to happen?
My worry was actually in the delay.My sense at that point was there's very little new information, and because of the time clock we've talked about, that Republicans need to keep this moving on a timeline to complete before the midterm elections.And I know that sounds very politically motivated, but if you actually look at the Kavanaugh confirmation and the timeline, it's beyond the average confirmation in recent decades of how long a nominee would take to get confirmed.
I think there had been full deliberation between individual meetings, full hearings, so I think it was appropriate to keep that timetable.So my biggest worry was that—was that a delay would create new opportunities for additional allegations, perhaps unfounded, to come forward.
Playing the Long Game with the Courts
… When you looked at that, the results of the midterm election and the Kavanaugh moment as a cause or effect, where do you come down?
None of us will know for sure, Mike.But I guess the way I look at it is, the Democratic Party was energized coming into the midterm.Their base was active.And I don't know that they much upside for what they did to Kavanaugh.I think the results on the House would have been largely the same.I think where their maneuvers hurt them was in the Senate, because let's put yourself in Joe Donnelly shoes.You're running for re-election.At this point it’s become such a polarized decision that if you vote for Kavanaugh, then your base of Democrat activists get angry at you, and you need them for the energy in your party.If you vote against Kavanaugh, you no longer look like the moderate voice representing a Republican-leaning state.You look like somebody who's opposed to Trump no matter what.And keep in mind, Donald Trump won Indiana by a large margin.He won North Dakota by a large margin.And so I think that really, the decisions that Schumer had cost Heitkamp, McCaskill and Donnelly seats that I think Democrats wish they could have held onto.
And the effect on the Supreme Court of the politicization of these nominees, especially in this case?
I don't know what the long-term impact is going to be yet.I certainly think that … ever since the Bork nomination, we've continued down a path that just keeps getting worse and worse.And so how we get out of that, I don't know.I'm not so sure.It appears that certainly the relationships on the Supreme Court themselves are cordial, but the confirmation process has reached such a low point that, you know, it will be difficult to see what happens in the future, when there are other nominees put forward and people cross over.
So I do think Republicans, evidence would show, supported in large numbers, Ruth Bader Ginsburg, in large numbers; Elena Kagan, they've crossed over.Democrats have not in supporting Republican nominees.What happens when there's a Democrat president and they put forward who they view as a credentialed candidate?Will Republicans have a sense of retaliation now?Will there be a sense that the politics of today mean that you can no longer cross over and support another nominee?That's to be played out.But I fear that's where we're headed.
McConnell's role during the Obama years as minority leader and then as majority leader: We’ve talked to the Democrats and Republicans who said he was really laser-focused on judges in a way that Democrats and Obama weren’t.Can you just help us on how much attention he's paying to judges and what his strategy was over those years when Obama was president?
I think there's been a fair criticism that, for all the things that President Obama had going on, they didn't push their nominees as much and didn't try to overcome the obstruction perhaps Republicans put forward.There’s no doubt that this is a huge part of Mitch McConnell's legacy, is the way that he's helped to reshape the courts under Donald Trump.And I can share that, even when we were putting forward nominees for, let's say, deputy secretaries of departments, who have been held up for months by Democrats, and we would implore Mitch McConnell to schedule a floor vote, his response fairly would be to say: “Look, it's outrageous what they're doing.But end of the day, your political nominee is going to be there for 18 months.A judge is going to be there potentially for 20 or 30 years.I'm going to prioritize judges each and every time I get an opportunity to have a cloture vote on the Senate floor.”So he's been very laser-focused on this and to his credit, I think, deserves a large part of the credit of how this will be impacting the courts for years to come.
He's playing the long game.
There's no doubt he's played the long game.
Can you help us a little bit more about his relationship with McGahn and why the president sort of defers to him?He comes in, and people are saying, “Is he going to appoint Judge Judy or his sister to the courts?”And it seems like he makes a decision to really listen to McGahn on judicial nominees.Is that a political decision?Is that a personal relationship with McGahn?What is it that gives Don McGahn such a role?
Well, Don clearly had been the lawyer for the campaign and had a pre-existing relationship, work relationship, with the president, so I think there was a trust there.But also, as a former FEC [Federal Election Commission] lawyer, Don had worked closely on a lot of the senators’ campaigns, so he had the added benefit of having relationships with members who would be voting for the nominee, and I think he could give the president strong advice on a pathway forward.
He was also appointed to the FEC thanks to Mitch McConnell.
That is true. He was.
They obviously, I would assume, have a very strong relationship as well, especially through this time.
There's no doubt that the White House counsel and Mitch McConnell worked closely together on our nominees.
You know, the amazing thing is, we've talked to, you know, powerful Democrats who say they've always been astonished that they couldn't ever activate Democrats around the issue of the Supreme Court and, you know, getting the right people in the court.And these are people who are deeply involved in the politics of it. …
I don't know if it's fair to say Republicans value the role of the judiciary more—and that's a reason for it—but I do think, among conservatives, what in part has galvanized many of us is the belief that Republicans have missed opportunities before.And you look at the nominees that many have put forward from, frankly, some of the Reagan years and the Bush years, that conservatives say, you know, “You're trying to put forward candidates that you think are going to get bipartisan support, and all they end up doing is voting with Democrats on the court.It's time that we were serious about this.”
And so there's been a desire for many conservatives, for a long time, to have these Supreme Court fights and to say, “It’s time for us to stand firm.”And I think that Donald Trump naming two conservatives to the Supreme Court I think has brought fruition to their efforts for many years.And perhaps that’s part of it.And in cases Democrats have taken for granted that the nominees they've put forward have always sort of stood together on the court, where it has not been the case of Republicans.So it's a more energized battle.
So they would, of course, say: “Wait a minute.Once upon a time it was fair.You elected a president, and what the Senate did was confirm, basically, advise and consent, and pick them, evaluate character and qualifications, and get them on.Now it's evaluating politics and ideology.And that's a huge shift from the Democrats’ point of view, and not fair, and not particularly good for the court.”
Well, I find that ironic that's the Democrats’ point of view, because it seems it's exactly opposite of what they've done.As we've discussed, Republicans have crossed over and supported their nominees, from Stephen Breyer, Elena Kagan, [Sonia] Sotomayor, Ruth Bader Ginsburg.They had enormous majorities of support.But the Republican nominees have not had that same support because Democrats have opposed them on ideological grounds.
I wish we could go back to the day when people, the Senate used this role [of] advice and consent based on the merits and didn't have to say, “I agree or disagree with the person's judicial philosophy on this particular issue.”It's, is this person merited, because it's a presidential pick?”And I think you even heard Lindsey Graham, in one of his moments of frustration, express: “I voted for Elena Kagan.Never again.I've learned my lesson.”Now we’ll see if that plays out, but is that really the lesson we want our senators to be learning?I hope not.I hope it's the reverse.I hope that Democrats and Republicans will both look at a nominee and say: “That's the president's nominee.That's the president's pick.My job is to say, ‘Is the person qualified?,’not to put some sort of political litmus test over it.”
It's amazing, because you're essentially saying it's not so much about the nominee anymore.And it’s really what we're evaluating here is the Senate and the actions of the United States Senate.
Absolutely.It's the Senate that I think has led us to this really low point.And yes, now basically, senators I think are looking at, “Where's the base of my party on this, and how is this going to play out in my re-election?,” as opposed to saying, “Is this person qualified to serve 20 or 30 years on the Supreme Court?”
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