The FRONTLINE Interviews

Norman Ornstein

Co-Author, One Nation After Trump

Norman Ornstein is a resident scholar at the American Enterprise Institute. He wrote about the American political divide in the 2017 book One Nation After Trump, which he co-authored.

This is a transcript of an interview with FRONTLINE’s Michael Kirk conducted on January 24, 2019. It has been edited for clarity and length.

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Supreme Revenge

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Politics, Tribalism, and the Courts

So when we think about the Supreme Court, and what's happened from [Robert] Bork, what many people we talk to call the “original sin,” to [Brett] Kavanaugh and the manifestation of the divisions in our politics through the nomination, confirmation, the advice and consent process, I know you've written about tribalism.Can you apply tribalism to that arc?

There's absolutely no question that tribalism has now infused every element of our politics and governance, including the courts.There's more to it than tribalism, of course.If you go back through most of American history, we didn't even have confirmation hearings for Supreme Court justices.The assumption was you were picking somebody who was a smart, sensible, balanced person, a man, and if the president nominated and there wasn't some obvious evidence of malfeasance, there was just no question.

That began to change.It changed as partisanship grew a sharper edge.You go back to Richard Nixon’s nomination of Clement Haynsworth, a pretty distinguished judge for the Supreme Court, and Democrats in Congress who battled with Nixon wanted a victory and found fairly flimsy evidence of financial misconduct, shot him down.Nixon responded with a middle finger, nominating an utterly unqualified Harrold Carswell, who then went down as well.

With Nixon and the conflict with Democrats, ultimately, of course, leading to his impeachment, what we saw for the first time was nominations to the court as a political weapon.What we saw with Bork was an acceleration of the tribal warfare that came with those nominations.Now, there’s a caveat with Bork.We had two nominees move through very quickly when there were vacancies that occurred.The first one went to Antonin Scalia.And Scalia, who was, I would argue, more sharp-edged ideologically than Robert Bork, was confirmed very quickly because he was the first Italian-American to be nominated to the court, and because he had a great sense of humor.

When Bork came up next, Democrats were loaded for bear, and they had somebody who had a level of arrogance and an inability to understand the nature of the political process who became a prime target.I could make a case that if Bork had been nominated before Scalia, that both of them probably would have made it through.We might have a slight difference in the dynamic here.But the fact is with Bork, with the term that arose, “borked” in the process, with the sense of grievance that conservatives felt at what had happened to their nominee, we saw an increase in the warfare here.

Now, I think there's another phenomenon that we have to consider.If you go back before 1980, we didn't have intense partisan competition for most of American politics.Democrats dominated the Congress from 1954 right up to the 1980 election when they lost the Senate.Democrats kept the majority in the House for 40 consecutive years.But after 1980, and especially after the midterm election in 1994 when Newt Gingrich (R-Ga.) came in, we entered a period of close partisan competition, where every presidential election, certainly control of the House and Senate, were up for grabs every single time.

And the sense that that competition was going to continue, even as the parties grew more apart ideologically, meant that stakes for things like the court grew.At the same time, the close divisions and ideological separation of the parties made it harder and harder to pass legislation that specified all kinds of things.Legislation became vaguer because that was the way you could build a majority.We had this omnibus legislating where if you knew there was a train that was going to both pull out of the station and reach a destination, you threw on as much as you could.

And what that meant was an awful lot of critical issues were left to the courts to decide.And if you think about more policy power going to the courts, think about harsh partisan competition where for all you knew you could be out of power for a long period of time.If you could pick judges who would be there for 30 or 40 years or more after voters had rejected your party at the polls, the desire to pick people who would follow your ideological desires for that period of time grew tremendously, and the nature of the nominees for the court changed accordingly.

Then we move into this era that Newt Gingrich helped to create from the time he came to Congress with the 1978 election on, which was deliberately to foment tribalism.Polarization is one thing, where parties have different ideologies, but you can almost always find common ground and have the ability to act if you're simply polarized.Look at Ted Kennedy (D-Mass.) on the one hand and Orrin Hatch (R-Utah) on the other.Liberal Democrat, conservative Republican, good friends, unlikely friends, but they gave us things like the children’s health insurance program, the Orphan Drug Act.

The difference is if you're polarized, you say: “They're honorable people even if they view things differently than we do.And an honorable president picks somebody qualified for the court.We’ll be OK with that.”Tribalism is where you say, “You're the enemy; you're trying to destroy our way of life.”And if you're tribal, a nominee for the court means that you're going to pick somebody who will be the enemy within.And all of that led to an escalation of this conflict that now has careened out of control.

The Nomination of Robert Bork

…Speaking of Kennedy, they name Bork, and within 45 minutes Kennedy’s on the floor, and he just delivers a crushing statement from Bork’s perspective about who he is and what he stands for, Robert Bork’s world.What's behind what Kennedy is doing?

So I think we have a couple of phenomena here.I knew Ted Kennedy pretty well.I think he will ultimately be regarded as one of the handful of the greatest senators certainly of the 20th century, but he also had a fierce partisan outlook, and remember what we had here was, after four years of Jimmy Carter, a closely divided but quite moderate court.All of a sudden, Ronald Reagan had the opportunity to create a conservative majority on the court.You get Scalia, and then you have Bork.

And the desire to make sure that somebody with a strong ideology would not be on that court the second time around I think moved Kennedy to a level of rhetorical excess that has reverberated for a long time.There were a lot of reasons to be skeptical about Bork.He took some elements of a legal philosophy to a logical conclusion that a lot of people would find pretty bizarre.He was also a legal giant and clearly somebody qualified for the court.

Now, you've got another factor here, of course, which is that Saturday Night Massacre, that famous Saturday Night Massacre where Richard Nixon, being investigated by the special prosecutor, Archibald Cox, fired Cox by going to the attorney general, Elliot Richardson, and saying, “I want him out.”Richardson said, “That's wrong,” and he resigned.Nixon went to the deputy attorney general, William Ruckelshaus, who also resigned.Then he went to the solicitor general, Robert Bork.Now Bork, for perfectly legitimate reasons, said: “This guy’s going to fire Cox no matter what.Somebody’s got to do it.I’ll take the hit.”But that hit reverberated.

Bork was known less for his legal scholarship among Democrats in Congress than for being the hit man for Richard Nixon in the Saturday Night Massacre.You put all of that together, and you can see the hostility level rising.But what we also know is that while we started with this getting the political victory back with Nixon and Haynsworth, and then with Nixon sticking it to Congress with Carswell and losing again, that receded for a while, but it came back in a big way when Bork was nominated, and you knew that the grievance that people felt on the right was going to result in a payback at some point down the road when they would have their own nominees.

The Ideological Balance of the Court

The Democrats, in anticipation of Bork or someone else conservative, had created a kind of war room idea, Gregory Peck TV ads, 300 groups affiliated, newspaper ads, People For the American Way and Norman Lear all over it.They were locked and loaded when Bork was nominated.That's an example of what, more of the same?

So, you know, to a degree when you get a conflict between one party in Congress and a president, and it begins to escalate, there is a kind of tunnel vision that can occur; namely, we want a victory.And that victory is an end in and to itself.It is, in many ways, a pyrrhic victory, because it’s not as if the president is then going to step back and say, “Oops, OK, now I’ll nominate somebody you like.”The president is going to pick somebody at least as conservative, in this case, and you'll end up with a court that's not that much different.

But you have outside groups who mobilize now.You have groups that have existed for the last 25 or 30 years that never did before who carefully scrutinize judicial nominees who understand that the judiciary is a new battleground for policy.And a party has to satisfy its outside groups as well.So there were a lot of legitimate reasons to question some of Robert Bork’s jurisprudence and to question his judicial temperament, but it went to a different level.

Now, there's another point here that if we go beyond Robert Bork, there are two things to consider.My wife is a graduate of Yale Law School, and we went up for a reunion that turned out to be the 50th anniversary of Brown v. Board of Education, and they had a panel with six former clerks of justices at the time that Brown was decided in 1954.

Now, that case went over two terms and ultimately was decided unanimously with a court that had a lot of ideological variation.Why?Because the justices understood that this was going to be such a fundamental change in the social fabric that if it came out on a 5-4 basis, it could cause even more turmoil.

Now, why did they have that viewpoint?Six of the nine justices of the Supreme Court at the time Brown v. Board of Education was decided had been politicians.They had served as governor, as senator, as mayor, and they understood that the court’s decisions were intertwined with politics and culture.

Since then, one, Sandra Day O’Connor, had legislative service.Now, that means basically the only people nominated are former judges or in some cases people who have been deeply involved in the executive branch in policymaking on the legal side so that you can be sure you're getting somebody who isn't going to look at this through a broader political lens, but through an ideological one.

The second thing is we've had many instances in the past of presidents picking people to be justices on the court who they thought had a certain legal and political viewpoint and turned out to be disappointed.Remember that Dwight Eisenhower, who picked Earl Warren, the former governor of California, to be chief justice, said that was the biggest damn fool mistake he’d ever made, because Warren turned out to be significantly more liberal than Eisenhower thought.

The limiting case here was a justice nominated by George Herbert Walker Bush strongly endorsed by Republican allies of his, like Warren Rudman (R-N.H.) in the Senate, David Souter.David Souter had been an appeals court judge and a pretty conservative one; moved steadily when he got in the Supreme Court toward more liberal rulings.And from that point on, from David Souter on, Republicans in Congress, outside groups like the Federalist Society, were determined that they would never, ever again get a justice who didn't follow a direct path with the kinds of rulings they wanted.

And so we saw a vetting process begin to emerge to make sure you would have ideologically compatible justices, and the more that vetting process ensured ideologically strong and consistent judges, the more the tribal conflict grew.

The Rise of the Federalist Society

Great.So at the end of Bork, he’s gone down in flames.So let’s talk about the Federalist Society.… Bork, Scalia were their campus advisers, as you well know.So there they are.They're a kind of campus group, and they're conservatives who were happy to be with other conservatives in liberal law schools.Fair enough.

Then along comes the Bork moment, which seems to energize this nascent—this growing energy inside the Federalist Society.… Take me up to the creation of Clarence Thomas as a nominee.In those five years from Bork to Thomas, what happens with the Federalist Society?

So you can make a case that the Federalist Society started more as an academic institution, a home for conservatives who felt left out of the mainstream in law schools, in the whole legal world.And they held symposia, and they were able to get together with likeminded individuals.With the Bork confirmation fiasco, the Federalist Society became certainly much more energized politically and became much more concerned with making sure that their philosophy and the people who they believed were their likeminded figures would be the ones nominated for the court.They wanted to take on a role parallel to the American Bar Association in vetting potential nominees and giving them a thumbs up or a thumbs down.

But they also moved to be more active politically.And that meant identifying early on potential candidates for the courts.And it meant identifying young people, bringing them into the Federalist Society and making sure they had the appropriate philosophy and then test-marketing them by getting them picked for judgeships below the Supreme Court level.

Now, I would argue that those efforts, which also included pushing for nominees after Bork was shot down, all the way up and through the Bush presidency and beyond, took on a different coloration when Bill Clinton became president.And the Federalist Society and a lot of people in it were key movers in the efforts to discredit Bill Clinton and ultimately to get him impeached.Hillary Clinton talked about the “vast right-wing conspiracy,” was derided for it, but the fact is, the Federalist Society was at the center of an effort to go after and discredit Bill Clinton and his presidency and to make sure that a lot of his potential nominees for federal courts were stalled, blocked, kept from going anywhere, so that those slots could be made available when they ultimately were able to be back in power.

Now I think it’s moved to even a different level where we see the Federalist Society almost doing boot camps for potential nominees and getting them to pledge that they're not going to be like David Souter or even like Anthony Kennedy.

The Nomination of Clarence Thomas and Allegations by Anita Hill

Right.I don't know how far to go with this.So Thomas is nominated, member of the Federalist Society, served a couple of years on the launchpad, the D.C. Court, …and it seems like he’s going to make it, partly because Kennedy and [Joe] Biden (D-Del.) are neutralized a little bit on a black African American man.And then Anita Hill emerges as a force.Why?How does that happen?Where does that come from?

So we didn't see some manipulation of Anita Hill by liberal groups to find somebody who would make accusations against Clarence Thomas.Anita Hill, who had emerged in a small way earlier when Thomas was nominated for the appeals court, but really was reluctant to come forward, understanding that you would become a national figure and would be very much in the spotlight—but there's a real difference when you go from a court of appeals, even a powerful place like the D.C. Circuit, to the Supreme Court.

And I think Hill felt like she had to come forward and say what she believed about Clarence Thomas’ character and about her own experience with him.I'm not sure she had any idea how this would explode into a national tribal war.And I'm not sure that the Democrats in the Senate, having to navigate through an African American nominee who had been confirmed without any trouble to the D.C. Circuit, who had Democrats, liberals on the D.C. Circuit, who said, “He’s a really good guy, and he's not really that rigid,” some of whom told me afterward that they had been mistaken about that, but really didn't want to get into a kind of war where they would shoot down an African American.And, of course, long before the #MeToo movement, there was a different attitude taken toward women coming forward.We know that there were other women who decided not to come forward after Anita Hill.

We also know that what Clarence Thomas did in response to these accusations, which was very different from what we've seen with other judges challenged and questioned about their character or about their decisions, including Bork, which was to respond very much cognizant of the need to have a judicial temperament even if you're in a political war.Clarence Thomas took an aggressive approach.Nobody who was around will ever forget the moment when they called it a “high-tech lynching.”

And, of course, what we also have to remember is despite all of the controversy, all of the difficulty, in part because of the efforts of Democrats on the committee like Joe Biden, Clarence Thomas in the end got a vote on the floor and was confirmed and is on the court decades later.So it ratcheted up the warfare.It took it to a different level.It raised questions not about how you would make decisions or what kinds of decisions you've made, or what your judicial philosophy was, but what your past behavior and character were that have, of course, carried forward ever since.

So if Bork on the seismic scale is, as the original sin, is a 5 of 1 to 10, Thomas is a 7?

Thomas takes it to a 7.But again, Bork was rejected; Thomas was confirmed.And we also have to keep in mind that for both Bork and Thomas, these were not entirely party-line votes.You had Republicans vote against Bork.You had Democrats vote for Thomas.That's a very different element than what we've seen with the last few nominees.

Mitch McConnell and Control of the Courts

…

When Bork is taken down, McConnell is one of the senators who stands up on the floor, young, dark-haired Mitch McConnell.We have the stock footage.And he waves his finger at the Democrats and says, “You will rue this day, not now, not soon, but in the long run.”It’s much like he said to Harry Reid (D-Nev.) about the nuclear option, “You will regret this,” in the form of what really reads to us like almost a threat.So that by the time we catch up with our friend, Leader McConnell, he is denying the sitting president in the 10 months to go in his presidency the opportunity to pick yet another justice, Merrick Garland.Help me understand what all of that means, what that trail from that to that is, and is that a supreme revenge moment by McConnell?

So let’s go back a little further in time: Bill Clinton’s final two years in office, lots of nominees for district courts and appeals courts slow-moved by the Republicans in the Senate, blocked in some cases.Most of Bill Clinton’s nominees for appeals courts and for district courts were moderate figures.He was not picking flaming liberal ideologues but slow-walking them and blocking them was a strategy designed to keep slots open in the chance that a Republican would get elected president.

That began a very different process and mindset for the whole nature of the judiciary through a partisan lens.It was using a confirmation process in a very different way.Now, Democrats did it to a much more minor degree with George W. Bush, although they moved up a little bit in terms of delays in the last two years of the Bush administration when Democrats had a majority.But it was a misdemeanor compared to a previous felony.

Mitch McConnell as the Senate leader, when Barack Obama became president, completely changed the nature of congressional warfare against Obama and Democratic judicial nominees.For one thing, the filibuster, which had rarely been used against judicial nominees, Democrats had used it some when Bush was president.And of course we had the threat of the nuclear option then, and a bipartisan group of senators reached a deal so that Bush could get some of his nominees for key appeals courts who were very strongly ideological confirmed, and some others would be dropped.

With McConnell, the filibuster was used against virtually every nominee for the appeals court and something called the “blue slip” was used by Republican senators when judges for district courts from their states came up where they would block them from consideration, even if they had previously supported them.

The filibuster, which had been a rare thing, even for legislation, became a regular thing, what I've called a “weapon of mass obstruction.”And it was not just to block the court nominees; it was to use up all Senate floor time.We had nominees for appeals courts made by Obama that ultimately were confirmed unanimously who were still filibustered, because you could take two days of floor time before a cloture motion could be brought to the floor.

And then you would have, even after you had said we're going to stop debate and move on, 30 hours of debate after that that would just use up that time.So McConnell perfected the idea of using and distorting Senate rules to block nominees.

Now, there's been a lot of talk about Harry Reid, majority leader, blowing up that Senate rule, doing a version of the nuclear option and how Mitch McConnell said, “You will rue that day.”What we have to keep in mind is Harry Reid had little choice because of what McConnell had done.The second most important court in America is the D.C. Circuit Court of Appeals.That one of the 14 circuits handles virtually all the decisions involving presidential power, executive power, regulations, among other things.It had long had a conservative majority because so many judges were able to be appointed during the time when Republicans dominated the presidency—eight years with Nixon and Ford, 12 years with Reagan and Bush, eight years with Bush 41.And that conservative majority was in danger of turning into a liberal one because there were three vacancies for Barack Obama to fill.

McConnell told Harry Reid, the majority leader: “You need 60 votes for those nominees, whoever they may be, and I am telling you not any one of them will get through.We will block anybody that this president nominates because we're going to keep that conservative majority on the court.”

Reid’s choice was either to go along with that, and if that had happened now we would have a super-conservative majority on the D.C. Circuit for many decades to come.And there's no doubt in my mind that Mitch McConnell would have changed the rule when he had the opportunity to do so, or change the rule in as limited a way as you could.

What Reid did was to change the filibuster rule to lower the threshold to 50 for nominees for lower courts and executive nominees who were also being blocked by McConnell to disrupt the presidency.That gave McConnell traction to say it’s legitimate for me to change the rule for the Supreme Court, and used it when he had the chance.McConnell didn’t know that we would get a Donald Trump presidency.He, like most others, probably suspected or assumed that Hillary Clinton would win, but knew that there was a chance, at least, that there would be a Republican president.And if he blocked Merrick Garland, if he got all his Republicans to make sure that Barack Obama in the nearly full year that he had to fill that post, if he could keep it open, maybe he’d be able to pick a justice more to his liking.And at the same time, we know that McConnell and other Republicans basically said, “We could block this even if there's a Democratic president.”

Now, I can only speculate here, but we know during the campaign in September that the Gang of Eight, the four leaders from the two parties of the intelligence committees in the House and Senate, the four party leaders, speaker, minority leader of the House, majority, minority leaders of the Senate, met together with the top from the White House and the leaders of the entire intelligence community who gave them a lot of evidence that the Russians were deeply engaged in trying to sabotage our election and that President Obama wanted to have a joint bipartisan statement saying, “Russia, we know what you're doing, and you'd better stop.”Mitch McConnell said, “I will not sign on to such a statement, and if you try to make a statement, I will say this is an entirely partisan effort to manipulate the election,” effectively blackmailing the president.

Now, there's been a lot of speculation about why McConnell might want to do that, and my guess is that McConnell, fearing a Clinton presidency, wanted to do as much as he could to cast doubts on the legitimacy of that presidency to give him the traction to keep that Supreme Court seat open as long as he possibly could, gambling that maybe he could do it long enough that he could get a Republican president to fill the post.

This is a different mindset than we've seen from any other leader in the Senate.There's been tribal warfare over Supreme Court nominees.It gets much greater, of course, when you're talking about replacing a justice of one ideological persuasion with one of the other, changing the ideological coloration of the court, more than if it’s a conservative for a conservative or a liberal for a liberal.We saw the latter with the lack of enormous confrontation over Elena Kagan or Sonia Sotomayor.

But in this case, moving from a conservative to even a moderate was too much for Mitch McConnell.And so he went to DEFCON 1, blowing up the norms of the Senate in a way I've never seen before.

Let’s talk about the next thing that happens, which is it’s March 2016.Donald Trump seems to be vanquishing his opponents in the Republican Party for the nomination.He does not, however, seem to have the support of conservatives in the way that he thinks he needs to get across the finish line.There's a meeting at Jones Day.Federalist Society’s there; Leonard Leo’s there; Jim DeMint is there; Don McGahn is there; Donald Trump is there, and he emerges with at least the promise of, if not actually in hand, a list of litmus test-style nominees which he can then wave in front of Republican voters.What's happening there?What's new about what's going on there?

So what's been more true of conservatives and Republicans until now than of liberals and Democrats is a belief that nothing is more important than who gets on the courts.I think a part of this is—let’s step back for a minute.We have a Republican Party that has seen its broader support in the country diminish.We know that after Republicans lost the 2012 presidential election, one they thought for sure they would win, Reince Priebus, the chair of the party, commissioned his famous autopsy, which basically said if we don’t take some dramatic actions, we're going to become a minority party in the country.The growth in the country is coming from areas where we don’t have enough support.

Now, if you're in that kind of a situation, you have a crossroads.You can take a series of steps including changing not just your rhetoric but your political viewpoint to attract a larger group of people.Doesn’t mean you abandon conservatism, but it means you adjust it to take into account minorities in the country, for example, or you double-down on your base, move to suppress the votes of the other side so that you can win even if you don’t have a majority support, and find ways knowing that if that doesn't work entirely well, you may be cast into the desert of the minority for a significant period of time.

So you keep your power by having judges stacked on the courts for decades, and particularly focus on getting people in their 30s and 40s who will be there for a long time, who will keep that power and that conservative ideology alive even if voters have rejected it.

Now, some of that comes from a belief by conservatives that for decades, from the Warren court on, even through the Burger court and even beyond that a little bit, through times when we got Roe v. Wade, for example, that liberals or at least moderates had dominated the court, and they were determined to make it a conservative court and determined that no matter what, they would find ways to get the kinds of people they wanted on the courts.

Donald Trump’s Nominee List

So, armed with a list from the Federalist Society—

Yeah, I didn't get to the second part of your question.

What is the meaning of the list?What does it tell us that there is such a thing as a list?What does it tell us about the Federalist Society in 2016?

So if you think of conservatives as having one single-minded desire out of an election, and that desire is to make sure that you've got a person who is going to be a president who will pick the kinds of people you want for the courts, if you have a presidential nominee struggling because he had been a Democrat long before he’d been a Republican, he’d been an independent long before he’d been a Republican, he had expressed liberal views at times in the past, kind of a New York Republican, you know at least in your gut, and you know from advisers like Don McGahn telling you that you could do almost anything in your personal life, you could be one of the most foul characters imaginable, and if you can guarantee to that conservative base and its funders and ideological leaders that you're still going to pick the kinds of people they want for the federal courts, they will give you a pass.

Donald Trump, who had probably never thought for a nanosecond about the courts, understood this enough that when Trump met with Leonard Leo and Don McGahn and the other leaders of the right and the courts, that if he just said, “Give me a list, and I will endorse it, and I will guarantee you that that's the list from which I will choose,” that he was going to get signed, sealed and delivered support from a strong part of that base…

That's the thing.It is compromise from the Congress based on an unspoken deal.We'll get what we want, especially Republicans in Congress, of course.We’ll get what we want.

So I think there's little doubt here.You know, if we look at the reaction of Republican leaders when Trump was marching toward the nomination, something they desperately did not want, when you look at the reaction of Republican leaders when that Access Hollywood tape came out, something that nauseated them in many respects, whether it nauseated them because of the moral failings or because it meant he was less likely to win, but they knew two things about Donald Trump.One was he had no real policy views, and that meant if they kept majorities in Congress, whatever they were able to put in front of him, he would sign; that he was more concerned about having a deal, a victory, a signing ceremony than any of the substance involved.

And the second, and even more important [thing] was that they were going to be able to get Trump to pick the judges they wanted, not the judges that he wanted, not the judges that others might suggest to him…

The Nomination of Brett Kavanaugh

Let’s take ourselves to Kavanaugh now.A lot of people tell us if you're in the chair on that first day, you're 90 percent of the way there.You’ve been through all the gladhanding; you've been through all the vetting; you've been through everything.You've got Democrats over here, but they can't really stop it.Maybe there's three or four votes in play, [Alaska’s Lisa] Murkowski, [Maine’s Susan] Collins, maybe [Arizona’s Jeff] Flake.But really, you're in.

The room explodes that first day, unbelievable, from the very beginning.I think [Grassley] gets 13 words in before screaming in the back of the room—protesters, Democrats yelling and screaming.All of it plays out before Americans on television.… What's happening there?

So first, of course, it’s important to realize that before the Bork nomination hearings, we didn’t have a lot of television done in the Senate when it came to confirmation of judges or justices.If it was there, it was pretty obscure.It became a major television circus after that, no matter who the nominee was.

So we're in a highly charged atmosphere to begin with.We know that there are deep resentments among Democrats over what had happened to Merrick Garland, resentments that played out a bit with Neil Gorsuch, but that really began to build with Kavanaugh, in part because Gorsuch was replacing Scalia.It was one for one.Kavanaugh was nominated to replace Kennedy.Kennedy, pretty conservative in many ways, but on a series of issues including, for example, gay rights and gay marriage, Kennedy was not the stick-figure right-winger, and Kavanaugh was.

So the sense that this was a pivotal moment in moving the court from center right to far right charged up Democrats tremendously.And a belief that Kavanaugh had been groomed for decades for this role added to all of that.

Now, there were not going to be many grounds where there was traction to oppose Kavanaugh before Christine Blasey Ford came forward…

All of a sudden the questions of sexual misconduct, even if it were misconduct that happened at a much earlier time in one’s life, with the #MeToo movement surging at that particular time, became grist for this mill.And of course what was so stunning about it in the end was the degree to which Kavanaugh took a page out of the Clarence Thomas playbook, and instead of demonstrating a judicial temperament went on a partisan tirade that was the opposite of judicial temperament.But none of it was going to stop McConnell from being able to muster the near-unanimous votes from his own colleagues, even from those who were uneasy about it in a tribal environment.

With Kavanaugh in many ways, we see the logical extension of tribalism, Susan Collins trying mightily after having taken a strong stand, for example, against Al Franken (D-Minn.) for accusations that were a tiny fraction of what was there for Kavanaugh, and who had to know, deep down, that Kavanaugh’s record on things like choice were not going to favor her position, twisting herself into a pretzel to find a way to support him; the unease of Lisa Murkowski which ended up being more about Alaska natives than about some of other issues; the degree to which a Jeff Flake and a Ben Sasse (R-Neb.) had talked about the need to move toward more civility and who were put off by the way in which this whole process had worked, but, knowing that to oppose Kavanaugh would mean either being excommunicated from the tribe or shunned by the tribe with all of the reverberations that would follow, basically enough went along to enable Kavanaugh to get confirmed.

What were the stakes for McConnell at that moment?

You know, in some ways, the bottom-line reality is that if Brett Kavanaugh had gone down, Donald Trump would have nominated somebody at least as conservative and maybe more so for the court.Whether it would have been a younger woman appeals court judge who had been a professor at Notre Dame, another appeals court judge with a sharp edge, they would have gotten that seat filled with somebody who would have been perfectly appropriate.

But what we have to keep in mind is—

But wait.Unless, of course—

Yeah, the Senate.

Your clock is ticking for McConnell.You’ve got midterm elections coming.Kavanaugh goes down, he doesn't have time to confirm somebody; he’s got the session opening, too.…

Sure.You know, we're going to see a lot of books written about the Kavanaugh case.The Kavanaugh case isn't just about Kavanaugh, it’s about Kennedy.Justice Kennedy’s announcement that he was going to retire, the timing of that announcement raised a lot of red flags for people.It seemed very clear that he had had some conversations, perhaps with McConnell and others, to make sure that if he were going to retire, there would be enough time to confirm a replacement.And, of course, Kavanaugh had been his clerk and was a favorite of his.

But having the Kavanaugh confirmation drag out the way it did created a dilemma for McConnell.He had no real idea whether the Senate elections, and what appeared in the fall to be a growing wave toward Democrats, could potentially result in the loss of the Senate.Now, there were three times as many Democrats up; the Senate seemed to be in pretty good shape for him.But then the presidency two years earlier looked to be in pretty good shape for Hillary Clinton, so no guarantees.And for McConnell, losing Kavanaugh would mean another nominee more conservative, but wouldn't necessarily mean a Senate that would be amenable to making that confirmation work.

And what we have to keep in mind as well is after what McConnell did with Merrick Garland, if the Democrats had won the Senate by one vote, there is absolutely no doubt that they would use the Garland precedent to make sure that seat was not filled, and the court would be 4-4 for a very considerable period of time.

Wow.Jim, what did we miss?

The Increased Power of the Federalist Society

Where the Federalists are at this point, how much more powerful they became with the list, …what were the lessons learned from that?

There's little doubt now that the Federalist Society is far more significant than the American Bar Association or any other legal group in terms of vetting judges, picking judges, and making sure that the judges that are picked starting at the lowest level and moving on up are not going to deviate from their ideological frame.The Federalist Society has made sure there will be no David Souters, no Earl Warrens, not even any Anthony Kennedys as long as Republicans have the Senate and the presidency.

And what Mitch McConnell has done is to make it fairly clear that if there is a Republican Senate and a Democratic president, they will basically stop that Democratic president from confirming any judges, and they will keep the judiciary in their hands for decades to come.

Now, we haven’t seen the end of this downward spiral, and we have another possibility ahead.What if Democrats win the Senate and the presidency in 2020?And what if by that time, with now 53 Republicans in the Senate, Donald Trump or, if Trump isn't there, Mike Pence, continuing to flood the appeals courts, the district courts, or any other Supreme Court nominees with hard-line conservatives, much of it done illegitimately, blocking Obama nominees so that they could have the slots available, doing with Merrick Garland what they did, how do you right a set of wrongs like that?

…If Democrats win power, they're going to be tempted to do a series of things, including enlarging the size of the appeals courts and enlarging the Supreme Court to right those wrongs.The only way Democrats can do that is by eliminating the filibuster entirely, something that even Mitch McConnell has been unwilling to do because there are unintended consequences down the road.But if you don’t and the Republicans who are not going to have fewer than 40 seats, so Democrats will not have a supermajority to do what they want, and that's true for the foreseeable future, the nature of the Senate tilted toward small states is going to give Republicans at least close to a majority for the foreseeable future.

If Democrats don’t do that, then basically McConnell, the Federalist Society, Trump …have gotten away with it.So how do you right wrongs blowing up norms without blowing up additional norms?It’s one of the real dilemmas we have going forward because of the nature of this tribal warfare that's morphed over into a place where the courts may be the prime focus of it.

When you go back to McConnell after Bork and you look forward to now, virtually on the edge of a very conservative court, it’s a sort of sweet revenge, a supreme revenge kind of moment, isn't it, for him?

There's I think no question that revenge tastes sweet, and it's sweet for him.Now, it’s entirely possible that because of the gambles he took, we may see another vacancy on the court before Trump or Trump-Pence leave office.That could be one of the liberals, and we could move from a 5-4 court, one where Anthony Kennedy was the swing vote to now where John Roberts is the swing vote, to a 6-3 court where the ultraconservatives have a clear-cut majority for almost everything.And remember, that would be the case for a very long period of time to come.

And if that's the case and we get a Democratic president, House and Senate and the Supreme Court tries to block every legislative act they take, or everything that would move the country in a different direction, then I think you're going to see a very strong reaction on the other side, and we will see the filibuster go, the Supreme Court enlarged to 12 or 13, and a lot of changes in the nature of the courts.And that takes us into even further uncharted territory.

Thank you.

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