Did Anthony Kennedy cut a secret deal with Donald Trump back in November to have Brett Kavanaugh replace him on the Supreme Court? Or do media outlets need to verify claims from single sources before taking them public? NBC’s Leigh Caldwell and Frank Thorp hear the pick has been locked in since November, and that the drama over the last two weeks was sheer atmospherics:
Furthermore, the five names Trump added to his list of Federalist Approved judges last November was to get Kavanaugh on that list. The other four names were considered cover, per source.
In other words: the decision has been baked for a while:
— Leigh Ann Caldwell (@LACaldwellDC) July 10, 2018
One can understand why this would be dynamite … if true, that is. Such a deal would seem a little … swampy, no? Trump ran on the promise to end the practice of Washington insiders making secret deals to perpetuate their grip on power. Having a Supreme Court justice trade a retirement for the right to name his successor is about as insider-ish as it gets, especially when it results in a former aide to George W. Bush getting the nod.
But that’s one reason why this sounds like drizzly BS, and there are other reasons to suspect it as well. This single-source report seems a little fantastical, if for no other reason than Kennedy had more than one former clerk in the mix; Raymond Kethledge is another of his proteges, and there are likely a few more on Trump’s longer list. More to the point, Kennedy has clearly developed an independent reputation as a jurist on the nation’s top court. Kavanaugh’s track record, after all, suggests that the court may revisit cases like Casey and perhaps even put limits on Obergefell that favor a broader exercise of religious liberty, the very outcome that has LGBT activists spitting nails over Kennedy’s decision to retire with Trump in the White House. Would Kennedy have risked his legacy to make a shabby deal on his way out just to ensure that someone significantly more conservative than he became ended up with his seat?
Trump judicial adviser Leonard Leo is flabbergasted at the suggestion — and denies it in full:
“That is garbage…no way that is possible. That is insulting to Justice Kennedy.” Leonard Leo to me just now on resorts Justice Kennedy struck a deal for Judge Kavanaugh.
— Hugh Hewitt (@hughhewitt) July 10, 2018
Leo should know, having presided over the deliberations that produced the Kavanaugh nomination (and Gorsuch before that). Besides, it’s a strange concept for a deal anyway. Once Kennedy resigns, he has no way to force Trump to honor such a deal. What would he do if Trump reneged — demand his seat back? A resignation is permanent, and a president’s appointment power is entirely independent (apart from the need for confirmation).
Caldwell has already pumped the brakes a bit on her report, tweeting out more than a half-hour later that they hadn’t corroborated the allegation:
To be clear: This is from one source and dont have any info on whether potus talked to kennedy about a possible replacement.
— Leigh Ann Caldwell (@LACaldwellDC) July 10, 2018
Ahem. Isn’t this the kind of tip that reporters might, y’know, attempt to corroborate with a second source before reporting it? Seems like a major deal if it turned out to be true, and a shabby smear if it turned out to be false. The shabby smear will travel halfway around the world before the clarifying tweet gets its RT boots on. And indeed, the first tweet on Caldwell’s thread has nine times as many likes and nearly 20x as many retweets as her “clarification.”
Get ready for a slew of nonsensical reporting over the next few weeks while Kavanaugh gets confirmed. It’s going to be a bumpy ride. This sums it up nicely:
"Someone who received 2nd hand gossip told me this really juicy fan fiction that I'm not going to try to verify before recklessly throwing it out on twitter" #Journalism2018
— AshSolesFromTheFire (@ashsoles) July 10, 2018
Update: Here’s the transcript from Hugh Hewitt’s interview with Leo this morning. Leo unequivocally denies it, and states that Trump carefully considered all of the candidates before making his decision. “This was a jump ball,” Leo says:
HH: Now Leonard Leo, there’s a report this morning from Jeff Bennett of NBC and others that Justice Kennedy, “had been in negotiations with the Trump team for months over Kennedy’s replacement. Once Kennedy received assurances that it would be Kavanaugh, his former law clerk, Kennedy felt comfortable retiring.” Your comment?
LL: Anyone who knows Justice Anthony Kennedy knows that that is garbage. He treats his office with tremendous dignity and independence. And there is literally no way in the world that that would have happened. And no president or White House Counsel who even knows Justice Kennedy a little bit would ever have tried to pull that stunt.
HH: So unequivocally, 100% denial, and you would have known about it?
LL: Oh, absolutely. I’ve known Justice Kennedy a little bit over the years, and I know Don McGahn even better. And there’s just no way, no way that that is possible. And that’s very insulting and offensive to Justice Kennedy. He’s a man who has greatly valued the independence of the judiciary, you know, and he has always been someone who has guarded his own prerogatives, and he would understand that doing something like that creates too much of a cozy connection between another branch of government and the judiciary, and I just could never see him do that.
HH: It would also be incredibly destructive of the good faith of the other candidates in the process who engaged in it. I was a Kethledge fan, but I like Brett Kavanaugh who will be fine. But I just want to make sure we drive a nail through this, because it’s spreading like wildfire on Twitter.
LL: Let me tell you, the President had very, very good interviews with each of the candidates, and this was a full throttled process. The President went back and forth, you know, between candidates, their plusses and their minuses. He made lots of phone calls about all of them. He asked Don McGahn, the White House Counsel, a lot of questions about each of them after the interviews. This is not someone who was just driven to nominate one person and create subterfuge and distraction by raising other names. This was a real game of jump ball. And all of these people were granted, I’ll give you an example. You mentioned Judge Ray Kethledge, Hugh. That interview was, by all accounts, a wonderful interview. The President was very impressed with Judge Kethledge. He ultimately didn’t pick him, but he was very impressed with him, and not only on his substance, but in terms of his commitment to courage and independence and fairness on the bench. He has a great book on leadership, as you know, where he talks about courage.