Even sadder than the fact that this “story” was reported out by a major network based on one source is the fact that so many lefties bit on it this morning. Confirmation bias in action: They want to believe that there’s something shady about Kennedy’s retirement, whether because of a conspiracy theory involving his son or some sort of quid pro quo between Trump and the justice himself, so they believed it. Now comes the belated correction. There was no quid pro quo after all, just a list of “acceptable replacements” allegedly provided by Kennedy to Trump. According to, again, one source. Who wasn’t directly involved.
I’ve deleted this tweet because it incorrectly implies a transactional nature in Kennedy’s replacement. I am told by a source who was not directly part of the talks that Kennedy provided Pres. Trump/ WH a list of acceptable replacements. (1/2) pic.twitter.com/ptxJmrbH9S
— Leigh Ann Caldwell (@LACaldwellDC) July 10, 2018
It’s one thing for Democrats to believe that President Deals would accept a dubious bargain like that, it’s another for them to believe that their friend Tony Kennedy, the “good” Republican, would participate. Still no benefit of the doubt as to his integrity after 20 years of landmark gay-rights rulings over noisy objections from the right?
It all seems familiar to Charles Cooke:
Since Trump won the election, our national conversation has been marked by this approach: First, a “journalist” will present an exciting story as fact; then, to rile up the reader, they will inject some high-octane editorializing — perhaps an “in other words . . .” or a “this is not normal” or an “in 2018!”; and, finally, they will present the real story — or, in this case, admit that they are relying on “one source” and don’t actually “have any info” on whether it’s true or not. And then they will sit back and watch the initial claim go viral, and, if they are called on it they will refer their critics to the caveat they added afterwards.
In any case, it’s obviously BS:
The story that Justice Kennedy negotiated for months and retired only when he had an agreement that the President would nominate Kavanaugh as his replacement is almost certainly false.
— SCOTUSblog (@SCOTUSblog) July 10, 2018
What really happened with Kennedy and Trump? In all probability Kennedy met with POTUS to tell him privately that he was preparing to retire and Trump asked him for recommendations on a replacement. Naturally Kennedy brought up Kavanaugh, a former clerk of his and “feeder judge” on the D.C. Circuit known for sending his own clerks on to work for various SCOTUS justices. And in fact that’s essentially what happened, per Politico:
After Justice Anthony Kennedy told President Donald Trump he would relinquish his seat on the Supreme Court, the president emerged from his private meeting with the retiring jurist focused on one candidate to name as his successor: Judge Brett Kavanaugh, Kennedy’s former law clerk…
[E]ven as Trump dispatched his top lawyers to comb though Kavanaugh’s rulings and quizzed allies about whether he was too close to the Bush family, potentially a fatal flaw, the president was always leaning toward accepting Kennedy’s partiality for Kavanaugh while preserving the secret until his formal announcement, sources with knowledge of his thinking told POLITICO…
Administration officials said Trump was taken with Kavanaugh even before his conversation with Kennedy. But Kennedy, in leaving the impression with Trump that Kavanaugh would be a great candidate for the job, helped the president make up his mind.
Kennedy retired and then pitched POTUS on his former clerk, making an impression in doing so. There’s no suggestion that he conditioned his retirement on Trump secretly promising him that he’d appoint Kavanaugh, let alone that the inclusion of Barrett, Kethledge, and Hardiman on the short list was some elaborate White House ruse to obscure the fact that Kavanaugh was the pick along. How would that negotiation have worked anyway? Purely as a psychological matter, does anyone really believe Trump would be willing to cede his most momentous kingly appointment power to Anthony Kennedy or anyone else? Besides, he still has two years left in his term and is more likely to have a redder Senate next January than a bluer one. He’s facing no time pressure that Kennedy could have used to squeeze Trump on replacing him with Kennedy’s own preferred candidate. (“If you don’t pick Kavanaugh I’ll stay on the Court another year and then you won’t get to appoint anyone!”)
Also, Trump being Trump, what would have prevented him from solemnly promising Kennedy that he’d appoint Kavanaugh if he retired and then turning around and breaking his promise? It’s not like Kennedy would have been able to un-retire. Nor could he have gone public about the deal he and POTUS allegedly reached. The lefty true believers in the quid pro quo theory are in the strange position of thinking on the one hand that Trump is a sleaze who’d absolutely make a bargain like this but on the other hand not so much of a sleaze that he’d stab Kennedy in the back by reneging on his promise to appoint Kavanaugh. It’s idiotic.
And of course untrue. Per Maggie Haberman and the NYT, the decision was made on Sunday night, not weeks ago: “Mr. Trump did not make a final decision until the last 24 hours, but he began logistical preparations for Judge Kavanaugh’s appointment earlier in the weekend, according to a person familiar with the planning.” In fact, according to Haberman, Trump called Kavanaugh on Sunday night to tell him that he was the pick — and then spent Monday morning asking people whom they preferred between Kavanaugh and Hardiman. Dialing up Kavanaugh on Monday afternoon and telling him that, oopsie, plans had changed would have been the Trumpiest thing ever. (Well, maybe not ever.) Thankfully he kept his bearings.