Ed O’Keefe

So [Antonin] Scalia dies. What is Leader [Mitch] McConnell’s (R-Ky.) response, and when?

So, incredibly, he, for whatever reason, is very firm in his belief that this is something now that they will be able to hold against the president and use as a political issue going into the 2016 election. McConnell throughout his Senate career has worried about this issue, but especially since becoming leader, of doing whatever he can to pack the court with as many conservative or Republican, right-leaning justices as possible. And it was a unique opportunity to do it.

What I think shocked his opponents and shocked and impressed his colleagues, like-minded colleagues, is that he so clearly understood that he had the ability to sort of say, “We will not do anything about this until the next election is held.” That’s a testament to folks like the Federalist Society and the Heritage Foundation and the NRSC [National Republican Senate Committee] and the people around him who know that concerns about the leanings of federal courts is a galvanizing issue for so many either conservative voters or right-leaning independent voters in this country.

That night there's a debate, a Republican presidential debate, in South Carolina, and it seems like one of the things he’s trying to do is get out front, ahead of Ted Cruz (R-Texas) and others who may want to start calling for a more ultraconservative justice or start picking candidates of their own from the stage. And it really does feel like it’s McConnell doing what he does best, which is exercising that authority.

Totally. And that was what made it even triply impressive, perhaps, is he had the hindsight to know this very quickly could become an organizing principle for his party going into 2016, but also that it was immediately going to become an issue on the campaign trail. Therefore, he had to exert some control in hopes that it wouldn’t run off the rails and become a competition over who’s the most conservative presidential candidate, because they're going to try to nominate the most conservative person of them all, which McConnell also knows could potentially inflict damage on the eventual GOP nominee, but also on Republicans running for the Senate.

So again, just incredible ability to understand in that moment that there were several competing reasons why he had to step in and [say] what he said so quickly.

People describe him to us as a long-game player, that he’s that guy. He’s thinking—he probably had thought of this before Scalia ever died.

He is the kind of—he is the unique figure in Washington in that yes, he had probably at some point, either himself or with his team, gamed out the possibility of something like this happening, that just as a White House prepares for the eventual retirement or death of a Supreme Court justice, he as Senate leader had to game out the possible scenarios that would result in tying up the Senate from a political and logistical standpoint for several months, because the moment these things happen, they can very quickly consume the Senate in a very unique way—not Congress, not all of Washington, but the Senate, because every single senator has a say in this. And depending on who that person is and the moment in which they suddenly come onto the scene, and the person they're replacing, it can either become a huge deal for the Senate or sort of a side issue that can play out over several months. And so he, again, just really smartly was able to step in very quickly and say, “We won't do anything about this until after the next election.”

It’s right in that month—we're now in March of ’16—that Trump comes to town for a kind of victory lap. Meets McConnell, goes to Jones Day law firm. [Don] McGahn takes him in. Leonard Leo is there, Jim DeMint is there, and they talk about what will become the famous list of Supreme Court candidates that Trump will wave around. In fact, Trump leaves there and goes to a press conference and sort of says, “I have a list,” even though he didn't have the list yet at that moment. Talk me through that.

Well, this became more apparent to us toward the end. Trump was eager to not only win the nomination but win over the Republican establishment or the Republican industrial complex, and a big part of it is the Heritage Foundation, the Federalist Society and the lawyers here in Washington who essentially bankroll or have graduated from those organizations, because, again, worries about the Supreme Court, its ideological balance and that of the federal courts overall is an incredible organizing tool for Republicans. It is something alongside taxes and abortion that holds together Republicans, even in this era.

And if you look at the closing weeks of the 2016 campaign, what was one of Trump’s rallying cries? “You may not like me; I get that. But you know that I will appoint people to the Supreme Court and to federal courts who are conservative, and Hillary Clinton won't.”

… So Trump is presented with this wish list, essentially, that says: “If you want our support, because we're more inclined to support Ted Cruz or Rand Paul (R-Ky.), we’d be OK with somebody like Jeb Bush (R-Fla.) because he’s sort of an intellectual conservative, but if you're going to pull this off and you want us to be with you, here's our list. Here's the people you should be pulling from.”

And he did. Democrats say it’s true. He outsourced this, essentially, to these two organizations. And that's fine, but he did. He didn't care. He had no understanding of who these people were. He had no understanding of the process. He wasn't inclined to care at all. But when presented with it and when made clear that “This will help you politically; this will shore up your base,” he said, “We’ve got to do it.”

So let’s talk a little bit about what the Federalist Society is by the time they're in that room with him. We know they’ve started back during the [Robert] Bork years. Bork and Scalia were their faculty advisers, for lack of a better term, and they’ve grown to be whatever they are at that moment. Just give me the thumbnail history of the group and what brings them into Jones Day at that moment at that meeting.

… A good chunk of Jones Day probably has been associated with it in one way or another since early on in their legal career, so it’s no surprise that they would be brought in and that Don McGahn would bring them in. If you are somebody who wants to be big in Republican politics, in Republican legal circles, then you have been a member of or a supporter of the Federalist Society. You have to be. And it is now alongside groups like the NRA an incredibly influential outside force that feeds, supports and holds up the Republican Party, whatever that currently is.

So it was a natural thing that eventually whoever was the GOP nominee was going to have to consult with the Federalist Society. They had helped George W. Bush; they had stood firm against what Barack Obama did; and they were eager to get back in the game and help the next Republican president.

I think everyone associated with them would tell you in their private moments at least that they were more than pleased with how receptive Trump was and that they probably wouldn’t have gotten as much cooperation or willingness to work with them the way they did from other people who were running, because a lot of the other people who were running either were lawyers or had hired people for government positions before, or had appointed judges as governors and had some familiarity with how it was done. Because Trump had no experience with any of that, and he was presented with these options, he was of a mindset that, “OK, let’s do it, because I don't know, and if you guys do, you guys figure it out for me.”

How big a bet was it for McConnell to sort of not let Obama’s guy, Merrick Garland, who is in some ways a moderate Republican or a conservative Democrat, onto the court, understanding that Hillary Clinton is the likely winner and is very likely not to send Garland up, to send somebody more progressive possibly, even?

Well, that was the concern that I think a lot of people around McConnell had, that it was a risky bet that if Clinton won, you're right; she might send somebody more liberal. So I think that was part of the concern and part of what shocked so many people. Is if he’s going to nominate somebody like that, why not just let him through? Maybe he compels others to retire and therefore we can hope that the next one is more conservative if it’s a Republican president.

But that was a big concern, and that's what kind of, I think, confused Democrats, too. Is Clinton never committed to nominating Garland? And you could sit there and presume who she might, and it wasn't necessarily someone like him. So it was a huge gamble for him to do that. I mean, she had threaded a needle that said, “I haven’t made up my mind.” I think it was something like that, or, “I won't commit to that.” And if you look at people that her husband had nominated, you would think, well, OK, they're going to probably be Northeast or New England academic legal types, maybe a woman, maybe a minority, certainly not a white guy who’s been here in Washington threading a legal needle for the last several years.

So on election night, McConnell’s not only thrilled that he keeps the Senate, but he gets the biggest prize of all given his career aspirations, which are, “I'm going to stock the court with conservatives.”

Yeah. I think once the shock of Trump winning wore off within a few days, if they hadn’t already, people began to realize: “Wait a second. Total Republican control of Washington now means a total ability for the most part to start stacking the courts.” And McConnell made very clear during the transition and in the early days of that new Senate that the Senate would be in the personnel business, which meant nominating Cabinet secretaries and other senior government officials, and working through a list of dozens of judicial vacancies and putting conservative nominees in those positions as quickly as possible.

He’s been unapologetic about it. We will look back on the history of the Senate in the coming decades and think, they weren't too creative during the McConnell period when it comes to legislation. But there is no doubt we will look back on this era and say, “He singlehandedly kept the courts from becoming liberal institutions and probably solidified conservative majorities or kept certain district and appeals courts far more balanced than they would have been had he not done this.”

You talk about the [Earl] Warren court or the [Warren] Burger court or the [John] Roberts court. We're living in the era of the McConnell court now because he did what he did. And it very well could be the McConnell court for several decades to come if nominees to lower courts somehow one day find themselves on the Supreme Court.

You covered the Congress for a long time. How does Mitch McConnell operate? What is he like?

… He is someone who says very little without a podium in front of him. He’s not someone who’s comfortable going off the cuff. Privately with aides and with close friends, he’s said to be chummy, sort of a jokey kind of guy. Sends emails to his aides and responds to them at all hours of the day, and can perhaps at times be very blunt in his assessment of a situation or of a person.

But when you cover Congress, whether it’s with a notebook or with a television camera, one of the beauties of the job is that when they're outside their offices or outside the chamber, they're in the hallways, and they're fair game. And some avoid us. Some are willing to talk but don’t necessarily say something that you would use. Some are total quote machines. And then there's Mitch McConnell, who would leave his office and walk to the Senate floor and knows that we're going to follow him but rarely says anything. Has this unrivaled ability to hear us and see us and just walk stone-faced right past us. And it’s an event; it is a mark in one’s congressional reporting career if you ask him a question about something other than Louisville basketball and get an answer from him. He has an uncanny discipline.

And when he does speak out, it’s only because something good has happened. … Well, the day that the Senate reversed the rules on filibusters—I looked this up in my notes, and we marked this because it was so unprecedented—he walked off the Senate floor, gave high fives to his colleagues and actually spoke to reporters on his way back to his office. He never does that. But that’s the level at which something has to happen for him to engage.

So that discipline is an example of his sort of clear-eyed sense of what he’s supposed to do and what he wants to do, which is why in hindsight the Garland decision, I think, is totally consistent with the way he operates and the way he’s run the Senate.

He’s a politics guy, not a policy guy.

Yeah, because if it was national security, he would confer with John McCain (R-Ariz.). If it was something related to health care or education, another domestic policy, he’d turn to his colleagues like Lamar Alexander (R-Tenn.). If it’s judicial appointments, he’s deferring to senior members of the Justice Department like Chuck Grassley (R-Iowa) or John Cornyn (R-Texas) or Lindsey Graham (R-S.C.). But, because it’s a pet concern of his, he’s going to do everything he can to make sure that that process runs as smoothly and gets as much time as it needs.

So when there's a vacancy for the [Anthony] Kennedy seat, [Neil] Gorsuch has already happened. How does it work, from what you can tell, between McConnell and his strategic vision, or his tactical vision and practice of getting things done, Don McGahn and Donald Trump?

Well, McConnell’s biggest concern once Kennedy announced was the fact that there was an election approaching, so he wanted to be able to get somebody through, but get somebody through quick enough that Republicans could then go home and campaign about it. So his preference wasn’t for someone like Brett Kavanaugh, who had had about a dozen years’ worth of opinions and who previous to that had touched every piece of paper that George W. Bush had seen, because he understood that that meant Democrats could justifiably use the process and drag it out as long as possible and potentially find something that would become a political issue that Democrats could run on and run against Republicans on. That never entirely materialized, in part because they slow-walked all the Kavanaugh documents. But his concerns about that certainly bore true as the process dragged out through the summer.

His preference was for others who had either a shorter legal career or would have been some kind of historic pick like a woman, because again, it would be a galvanizing issue for Republicans at a time when the president was unpopular and there was concern that in certain states Republicans could come up short if they didn't have something like the courts to sort of rally behind and get their people to turn out for.

So that was conveyed to the president in the ongoing series of private conversations that he has with the president, and it was conveyed to McGahn as well, who is the one that singlehandedly put Neil Gorsuch and Brett Kavanaugh on the court.

Tell me about McGahn.

A lawyer who’s been involved in Republican presidential politics and at Jones Day, certainly for the last several years, somebody who until he was hired by Donald Trump was always chatty with reporters and helpful and familiar with the process that nearly derailed Donald Trump and eventually did get him nominated by the RNC [Republican National Community], but once he was White House counsel became far more focused on fulfilling the wishes of McConnell and Republicans generally to get as many conservative justices on the various courts as possible; someone who didn't get along with Trump, but again, I think alongside McConnell will forever be held in great regard by the conservative movement for moving quickly to get as many of them on there as possible.

How does Trump feel about Kavanaugh in the beginning?

Wasn’t a fan, as I recall.

Right.

But came around to him when he realized that he was probably someone who was going to be far more reliably conservative than others. And I think also—and this was exposed during Kavanaugh’s confirmation hearing—somebody who’s a far more partisan pick than previous Supreme Court nominees, not an ideological lawyer but also a partisan lawyer; somebody who had worked for Ken Starr, somebody who had worked for George W. Bush and had George W. Bush’s support; somebody who had done everything he could in various ways to stand up against the Clintons.

I think when Trump started to learn about that, he was intrigued by it. And then the story of him being a father and a basketball coach and devoted Catholic and somebody who grew up here in Washington and had made a pretty impressive career for himself was all appealing. This is a president who likes people with pedigree, who look like they belong in the job that they are given, and ultimately that worked in Kavanaugh’s favor.

There's a wonderful piece of stock footage, I gather, of him after he’s talked to Trump delivering a sort of quick statement, and it literally sounds and looks like he’s been watching and channeling Trump as a narcissistic ego or something at that moment as part of his effort to appeal to the president.

You mean in the announcement speech?

Yeah.

Yeah. I mean, it was clearly written in a way to flatter and thank the president. What was, I think, most telling about that is when it was over, Trump leaned in and tried to shake his hand and almost tried to seem to pull Kavanaugh in, and Kavanaugh stood pretty firm. And Gorsuch, I think, had done the same exact thing; that there was some concern about being seen as too closely locked with this president who, remember, is under legal—has legal issues and wasn’t necessarily someone who was going to help you get the job.

The way people tell us, Trump’s a little wobbly on him, even after he says, “OK, this is my guy.”

Yeah, because he’s not seeing the grassroots rah-rah support from the [Laura] Ingraham and [Sean] Hannity and Twittersphere weighing of the conservative movement as he might have hoped. And there were concerns. I don't remember her name, but the woman, Amy something [Amy Coney Barrett], who had been on the short list, who he did talk to, was seen by a lot of movement conservatives and political consultants as somebody who probably would have been a better pick to more immediately gin up the base because she would have been a woman. Therefore, you would be creating a historic figure, and just from a television and marketing standpoint, seemed like somebody who would have been easier to sell to the American public than this guy who looks a lot like all the other guys on the court and who grew up in Bethesda, [Md.], which sort of feeds the whole swamp mentality that the president was allegedly trying to do away with. So I think he got nervous from a casting perspective, at least, that maybe he hadn’t picked the right guy.

There's another great scene. It’s McConnell standing in his office waiting for the photo op with Kavanaugh at the very beginning of their relationship. … Kavanaugh comes in, still no—they kind of shake hands, but they're both like deer in the headlights at that moment. And as you say, McConnell was not exactly enamored with the idea of—

No. He knew. McConnell knew—just as McConnell foretold the successes Republicans would have by holding open Scalia’s seat, McConnell had warned Trump Kavanaugh was going to create some trouble for them if he were nominated. It wasn’t ultimately the kind of trouble he expected, but it was trouble nonetheless. It kept the Senate in longer than he wanted. It gave Democrats opportunities to take potshots at the process, at the president and at the nominee. And it was just a heavier lift than McConnell was prepared for.

Remember, spring, early summer of 2018, it still looked like Democrats had a really good shot because they were holding on in Florida. Ted Cruz was vulnerable. Arizona’s seat was slipping away; so was Nevada’s. There was a chance that the 51/49 majority was just going to do a flip in the other direction.

And so you bring a guy with the paper trail that goes all the way back to Guantanamo Bay with George W. Bush, and McConnell knows that could be a real problem, especially in some of these closer races. Ultimately it ended up helping.

So when he’s standing there, he's running those traps.

He’s running those traps, and I think, as I recall from the photos or video, that he knew that we were all going to focus on the fact that he had made clear he didn't like this guy. And so when he’s on the ropes with the press is when he does the stone face, and he was doing it in that moment, and clearly trying to channel that he still was skeptical of whether Kavanaugh could get through.

The other piece of footage that I just love is the moment where Grassley walks Kavanaugh into the hearing room for the first day. Reporters, the photographers move out of the way. Kavanaugh sits down. Grassley taps his thing. He gets about 13 words out, and the Democrats just devour him. It’s like a microcosmic moment, you know?

And we know at this point that preparing any controversial nominee requires hours of preparation mostly to see if somebody’s capable of doing what we're doing right now, which is sitting here talking and not being able to move. I almost feel like enduring hours of Senate testimony without a bathroom break is a more impressive athletic achievement than running a marathon, because you literally are stuck there, and if you suggest any sense of needing to go to the bathroom or taking a break, it’s going to convey weakness and can be used against you, and it could totally throw off the whole process.

As I recall, the Democrats had agreed that weekend that they should do this. [Chuck] Schumer (D-N.Y.) and the Democrats on the committee had agreed that if they weren't going to be given the documents, if they weren't going to be given more time to review Kavanaugh’s history—and they had the base of the party and liberal activists across the country insisting that they had to do everything to stop this guy, not slow it down but stop this guy—then the only thing they could resort to at that point was theatrics.

And the plan was to start at the end of the rostrum with the two newest and probably most galvanizing members of the Democratic caucus right now, Kamala Harris (D-Calif.) and Cory Booker (D-N.J.), and have it work its way toward Dianne Feinstein (D-Calif.). She and [Patrick] Leahy (D-Vt.) and [Dick] Durbin (D-Ill.) could sort of preserve the institution of the committee and the Senate and be a little more decorous and allow the young whippersnappers to start causing trouble.

And it worked. They dominated the first day. The coverage was that the Democrats were complaining that Republicans were doing this without giving proper deference to a good Senate review, and Republicans were able to turn around and say they were sullying the process. But Democrats could turn right around and say: “Well, OK, we have an answer for that: Merrick Garland. You did this to us; we're going to do it to you, too.”

The leader watching this occur, of course, comes out and talks about it afterward in terms that are like: “Well, this is the Democrats. Here we go, right? You want to create a circus? This is not the way we want to do it.” What does that tell you about McConnell?

Well, he’s shameless, because, again, Democrats and any critic of what he’d done could justifiably say: “You sullied this up. You mucked this up by holding open the seat. You were the one establishing new precedent and dragging this whole process to a new low, because if you were truly following the consensus rules of the Senate, you would have allowed Garland to get his hearing. He would have had his up or down vote, and he’d be on the court, or maybe he wouldn’t be. So don’t talk to us about sullying this process or ruining the rules of the Senate, because you were the one that did it so shamelessly back in 2016.”

But it worked, to some extent, because now he could show Republican voters and independents, “We're trying to get this perfectly qualified guy through; they want to get hysterical.” In an election season, that kind of stuff works, and it did.

And in the bigger picture, step back 10,000 feet, what are we watching happen? What's happening in your career of watching nominees come up and nominees go through a process? What's different about Kavanaugh? What's different about this moment?

I think I tweeted—I could check it and read you the tweet.—that something like any last semblance of decorum was thrown out in the committee room that day; that if they literally were resorting to shouting at each other, then the Senate that we once knew is forever gone, and anyone who thinks otherwise just hasn’t been paying attention. Got a lot of flak for that, but it’s true. If all the Democrats could do was resort to shouting in hopes of stalling the inevitable by a few hours, then that's, you know, that's a new low. That's a new reality, and it’s institutionalized now, because if you don’t think it will happen when the shoe flips to the other side, you're not paying attention. Republicans will find some way to do this to a Democratic Senate one day.

In a way, it’s like fighting the last war. Every time, it’s a reaction to the—there's a war room created now for Kavanaugh, 11 people at the EEOB [Eisenhower Executive Office Building] sitting there practicing. There were many sessions where they're briefing him and going back and forth. There's ads running everywhere. There's a big newspaper buy, a big everything, to get Kavanaugh through. That got started by the Democrats when they went after Bork in 1987. And another thing happens in Kavanaugh that has a precedent, which is an Anita Hill-like character starts to grow up. When the Democrats can't seem to do anything else, a letter gets leaked, and [Christine] Blasey Ford appears.

Yeah. I think I’d said it on television. I think everyone kind of agreed and had joked that the only kind of thing that could stop Kavanaugh was an Anita Hill-like situation, and then suddenly we start hearing that actually there might be something like that? At first, I think there was a lot of hesitation, because I think in some minds, people thought, this is too good to be true—or not too good to be true; maybe it’s just too—it’s so predicable that it can’t be true. Does that make any sense? That, you know, how could we be possibly seeing another Republican president put up somebody who then gets accused of this in an institution that still is ill-prepared to deal with it?

But it happened, and there was just enough there to suggest that something had been flagged for Democrats that we had all in the press missed. Remember, any time somebody like this gets nominated, whether readers and viewers think so, deep dives are done into this person’s career and life. Ultimately, there may not be anything worth sharing beyond perfunctory biographical stories, but all avenues are pursued. And up until that point, there was no reason to believe that something like this existed in his background.

That was partly because Republicans had done such a masterful job from night one of casting him as a family man concerned about women’s rights because he had always employed female law clerks. He was the coach of his daughters’ basketball team. He had a wife that he had met while working on behalf of the country, and they were raising two lovely daughters.

But at the same time, the scrutiny that somebody undergoes had not unearthed that. And even in the Democrats’ own review of his record, there had been no evidence of that kind of thing happening. And the pent-up anger, frustration, anxiety and eagerness of younger, far more partisan Democrats that came down on Dianne Feinstein when she suddenly revealed that she had heard something was pretty enormous, and you have to set that decision to not say anything against what Feinstein was dealing with.

This is someone who is now the oldest senator in the body. We've never had a woman who was the oldest senator, and who comes from a completely different era of campaign politics. She only ever has to run television ads back home to get elected. But because she's never faced a strong competitor, both inside her party and from the other side of the aisle, she's not used to the rough-and-tumble and doesn't comprehend the sort of scrutiny and anxiety and the rancorous nature of modern-day electoral politics.

She was coasting to re-election, and there were a lot of Democrats in the Senate and back in California who thought she couldn't be because she's old; she's out of touch. Reporters keep catching her off guard and having her say things that she then has to go and correct. And that revelation that she’d suddenly gotten a private accusation leveled against this guy and she hadn’t shared it with her colleagues just set them off. And they said: “You have to reveal this. Who cares if it’s not valid? The court’s at stake. We have to find a way to screw this president.”

So it ultimately leaked out, and to this day, it’s still not entirely clear who did it and whether she had any hand in it, or whether her staff went around her back and did it. And frankly, if that is ultimately what happened, it wouldn’t surprise me, because she's the kind of senator who is not necessarily in tune enough with details like that to be aware of it.

When I talked to her at the Gorsuch hearing, this shows you how removed she is from certain aspects of modern-day journalism and politics, we had a phone call, and I asked her something like, “What are your top concerns?” and she listed a bunch of them. And then she made reference to something, and she goes, “I’ll have my staff fax it to you.” Well, who the hell uses fax machines anymore? She does. Apparently, the staff has to fax her documents to review on the weekends. This is the woman representing the Silicon Valley in the Senate, and she's still using a fax machine?

So when we heard that she had this document, for those who cover Congress it was no surprise that she was two steps behind the rest of her party in realizing that maybe this is something she should have brought to everyone’s attention. Now, it was a confidential complaint. This is somebody who is intimately familiar with these kinds of issues having dealt with previous accusations, so she probably legitimately was trying to respect Blasey Ford’s confidentiality. Fine. But her own colleagues, as craven as they were in that moment, said, “We've got to reveal this.”

Let’s go back to McConnell for a minute. He’s racing the clock. He wants to get this done.

Yeah, he wants the Senate gone by the end of August to go home and campaign.

And now this.

And now this. And given the reaction from Kavanaugh and the pretty strong denials, I think they immediately see this now as an opportunity to politicize the nomination in a way they weren't anticipating. It had been an otherwise sleepy and presumed affair. Everyone assumed unless there was something in his professional record or personal history, he was going to be on the court. It was inevitable. So this comes along, and it’s seen as desperate, a last-ditch attempt by Democrats to not only sully a legal professional, but to attack the president. And at a moment when enough of the Senate races were kind of sitting at 50/50, McConnell saw an opportunity to suddenly politicize the court yet again to his advantage.

When Kavanaugh does a Fox interview—

Oh, yeah.

And very soft and not—more Dukakis-like than Trump-like. And we've talked to people who said at the Oval Office it was not exactly a hit, and the president, who was wobbly on the guy anyway, is watching this and has his own thoughts about accusations of sexual impropriety. Talk to me, to the extent that you know about it, about Trump’s response and how wobbly were things for him.

Remember, this is a man who keeps Fox on all day long, and he knows that it will—he understands that it will have maximum impact not only to Fox viewers, but to everybody else. Somebody who is a professional television performer knows the medium well, and he saw what most Americans saw right away: somebody who didn't appear very comfortable discussing this with his wife next to him, and who didn’t seem very convincing, for whatever reason. And what I remember about it was that there was a general belief that something had to be done and said in the short term before the hearing, because public opinion was starting to snowball adversely.

There had been talk of it being some kind of a television interview, not necessarily with Fox, but ultimately the decision was made it would probably make more sense to be Fox because this White House is always primarily concerned with shoring up its base of support, because without the base of support, he’s got nothing, at least if you believe the polls. So you have to put him on Fox, because if he says it there, his base will believe it. They know the anchors; they know the channel itself. They presume he’s going to get a fair shake, maybe an easy shake. But it was not received well, and there were people up on the Hill, I remember, who were very nervous at that point.

There's a negotiation to get Blasey Ford to testify. You've got the optics of the old white guys on the left-hand side of the screen, all the Republicans, and then you've got the angry mixed-gender and -race—

And -age.

And -age Democrats on the other side. The optics are, “Wait a minute; this looks more like America than this.” And McConnell is put in this position where they decide to put a woman prosecutor or something at a tiny table in front of the white guys. And McConnell says the thing about “female assistant.” “We're going to get a female assistant out here who’s going to help us.” Take me there. What's up with that?

The senators were nervous. They understood that appearances matter, and the whole affair exposed a long, simmering frustration of Senate Republican leaders, which is they hadn’t convinced a woman to be on the committee. This wasn’t unique to the Kavanaugh situation. They tried in the past, and they weren't qualified enough or they didn't want to serve on a committee that takes up a lot of time. Requires a lot of interviews, a lot of reading, a lot of hearings on minor and major issues, and there was no woman on the Republican side willing or able to do it.

But there's a waiting list on the Democratic side to be on the Judiciary Committee, partly because so many senators are former attorneys general, solicitor generals or just lawyers by training, so it’s where they want to be. So there were conversations about how do we address this issue? And I suspected before it was announced that they were going to find somebody from Arizona to do it. You had Jeff Flake on the committee, but you had Jon Kyl appointed to replace John McCain who had been Kavanaugh’s sherpa already. So Kyl would know somebody back in Arizona who could probably do it, or that he trusted. So they found the woman whose name I forget [Rachel Mitchell] to come and do this. I checked with other members of the Arizona delegation, and nobody knew who she was, but, you know, they seemed to think that that was going to be enough.

But what was telling, what I remember more, is the day of the hearing itself. At lunchtime, members of the Judiciary Committee realized it was a disaster, a total, unforced error, and they went into a break room among themselves and decided: “We can't let this guy wither on the vine with some woman who nobody knows asking questions and us sitting there quietly. We have to speak up and defend the guy.” And that’s what set off Lindsey Graham. They saw the tweets. They were seeing initial coverage of it, and they looked neutered, to be deferring to this woman that nobody had ever heard of before because they weren't women themselves.

We talked to somebody who said that in the Oval Office, there wasn’t a dry eye after Blasey Ford talked. They thought they were basically screwed, right?

Yeah, I think everyone did. In all the days of covering Congress, that was a really emotional one, and a really weird one. Lot of days you cover stuff up there and you go, “That was rough,” or, “That was not a good reflection of who we are as a country or how this place is supposed to run.” But I remember going home that day with a really sick feeling, because we’d all basically been party to a bad soap opera. Clearly something happened to her, and we just don’t know what and who was part of it. And you just hate to think that the whole process had to come to that again.

And that was the other thing. It shocked a lot of the older senators, longer-serving senators, that once again, this issue was being brought into the public sphere. It either hadn’t been caught beforehand so that he was disqualified and not even nominated. It also sort of exposed the institution as still poorly prepared to talk about and handle these kind of accusations. Sure, there are more women and now there's a record number of women in the Senate, 25, but they hadn’t been put yet in positions where these kinds of questions would have been asked from the beginning, they would have been sought out, and that there would have been more sensitivity to them. And I think it just really bothered a lot of people.

But she was—remember, nobody had seen her, and nobody had heard from her, not even the senators, so it was a total surprise. I remember thinking it would have been like seeing the full face of Tim Allen’s neighbor on "Home Improvement," the big reveal. What did she look like, and what did she sound like? And when you realized how genuinely terrified she was to be there, it was pretty galling.

And the concession of putting her in that smaller hearing room was probably really smart. You do those kinds of hearings really only in two rooms: in the Russell Building where the Anita Hill hearing was held, and in the Hart Building in the made-for-TV committee room. And I don't think—when I heard that they were putting it in that small Dirksen hearing room, I actually said, “That's good,” because I think if this is done in the made-for-TV room, it’s going to be even worse, and it would allow the public to be in there, which would allow for people to potentially hector her or him. And this was such a sensitive thing that you just—the smaller, the more intimate the room, the better. It’s a hearing room that isn't much bigger than this suite, and certainly was designed to create some intimacy between her and the senators, but we were watching anyway. The whole world was watching.

So she finishes. It’s the president in the Oval Office with others. If he was ever wobbly, now he’s super-wobbly, and he tries to call McGahn, who’s in a room closeted with Kavanaugh, who’s also been watching and preparing his own remarks. McGahn dodges the call, and the president talks to Mitch, and McConnell basically says: “It’s halftime. Don’t worry.” I mean, it’s the steady McConnell, right?

It was. But in the break room across from the hearing room, the Republican senators were panicking, and that's when they decided: “We have to start speaking out on his behalf. If the Democrats aren’t using their time to actually ask questions instead of just grandstanding, then we're leaving precious minutes on the table. We need to speak out and explain why we have to allow this man to get on the court.” And they understood that.

… When he goes in and sits at the table, he really lets it fly.

Yeah. We’d never seen anything like that before. And in hindsight, the criticism that anybody but him would have gotten away with that I think is valid. I don't think a woman could have done that, and I don't think a non-white man could have done that and gotten away with it or survived the process. That is the one part of all this that in hindsight I went and thought about again and thought, they had a point there. You could not—remember the argument that “If I were in his courtroom and I behaved that way, I would have been thrown out”? The fact that the witness was then able to behave that way proved yet again that any sense of decorum is gone. And yet you wonder why more people who get called before congressional committees don’t flip out the way he did, because quite honestly, sometimes they ask really stupid questions and they're grandstanding, whether they are government officials or some other invited witness. So in some ways, he was doing what I think a lot of other people thought should have been done far sooner to members of Congress and asked, “Have you no shame?” But just the way he did it, by getting so personal to certain senators I thought was galling and something that other people would not have gotten away with.

… I am assuming—I'm not in his head, but it felt to me like he had an audience of one, and that one was the president of the United States, who was real wobbly about this guy.

That was apparent. Whether that was conveyed to him at halftime or not, I don't know. But Kavanaugh clearly knew that, much like everything else in this town right now, there's an audience of one, because what was the thing the president did right afterward? “Good job. I'm still with him.” He needed that tweet, and he earned that tweet over the course of his testimony by being so defiant and so angry with the Democrats.

He went pretty far, Ed, way out there. The Clinton allegation, the—

It was the Clinton allegation for me that I thought was most revealing, and that was the moment at which I realized this is not an ideological nominee; this is a partisan nominee, and this is something we haven’t seen before. Sure, Elena Kagan worked in the Obama White House. You know, others had worked for Reagan; John Roberts worked for Reagan. But we’d never seen a Supreme Court nominee call out some recent political history and, in essence, remind us that he’d been part of it and say, you know, “Just because they got away with it doesn’t mean I can't get away with it.” Or just invoking the Clintons at all just showed you that in the heat of the moment, his head goes there, goes to partisan concerns. And that's another threshold we've crossed now. You wonder in the future whether other Democratic or Republican presidents won't nominate equally partisan people to fill those positions.

The other greatest hits of those few days are the Flake-in-the-elevator moment. What did that tell you?

If there was any Republican that they could potentially convince or crack, it was him, the way they did it. And we heard rumblings of this through Twitter, and there [were] early indications that this had happened. And then we all saw it. And again, adding to the look on his face where he doesn't really have words for them, and he can't even look them in the eye, that feeling that he’s conveying there with his body language is the feeling that virtually every senator felt: “This sucks. This is really awkward. I can't believe we have to put up with this kind of situation again, at this rancorous political time when we're discussing far more openly than we ever have before women’s rights. And me as a guy is ill-equipped to comprehend the kind of accusation she's making and account for them in the course of this heated nomination fight.”

It’s funny, though. I've now heard two people running for president, or thinking about running for president, chuckle at that confrontation and say: “If Jeff Flake thinks that's bad, try being a mayor who goes to the supermarket. That's what it’s like every day for us.” And I think that's the other part of that moment that was so dramatic and revealing and unique, is you don’t often see members of Congress get confronted that way, that directly, at the exact moment that they are dealing with something difficult. They may get it on the plane ride home two days later; they may get it at a town hall meeting a week later. But to be confronted with it immediately in their own building I think was quite telling.

And look at the steps that they had to take with that hearing. They cleared the building, essentially, of any visitors. That's a rarity. Those are open buildings that anyone should be able to get into, should be able to get into, because they're our buildings. They're not private offices. But they had to clear the floors for security reasons because there were people literally going up and down the elevators trying to get off to try to get to the hearing room to try to confront senators the way that Flake was confronted. They had to put police officers at the door of every elevator on that floor to stop people from getting off, and they were screaming at the officers saying: “Let us off. Let us in here to see this.”

Well, the protests. I mean, we talked to Susan Collins (R-Maine) who said she was getting mail that said, “I'm going to dismember you.” The hallway’s full of in-your-face kind of protesters—felt like a different time.

She was confronted at her house at night and Capitol Hill, yeah, to which I say, “Welcome to the NFL.” If this was your first interaction with the anger that Americans are feeling, then you've done a mighty good job of sheltering yourself over the last few years. And at the same time, they should be afforded some sense of security. I mean, they’ve had colleagues shot in the last few years, so they're justifiably scared and concerned about their own safety. And we don’t want to live in a country where 535 members of Congress have police details.

What's up with that anger? What was up with what was going on in those hallways? That doesn’t feel like a Supreme Court-nominee moment.

I think this, because for so many people who don’t like the president, this is the most vivid reminder that elections have consequences. If Hillary Clinton had won, the situation would be far different. If Merrick Garland had been nominated and confirmed, we wouldn’t be here. This was people channeling that pent-up rage and maybe even guilt about not having been participatory enough in the past to the point where some of them were so upset they wanted to get violent about it.

… Well, and now let’s go to McConnell, who needs to keep a very small margin alive. He’s got really [Lisa] Murkowski (R-Alaska), Collins, Flake. He can't lose two of them, and he’s hoping to drag [Joe] Manchin (D-W.Va.) over. But really that's what he’s doing. He’s fighting a battle. All of this that you and I have just been talking about, he’s sitting in his office. It must be the closest he’s been to real peril the entire time he’s been leader.

I think next to election night, this is the closest he’s been to—well, next to election night 2016, this is the closest he’s been to peril, because if Hillary Clinton had won, his gamble on Merrick Garland would have been for naught. If any of his colleagues buckle, then even higher-stakes gamble of going forward with Kavanaugh would have been a big waste of time and a big loss of them.

And if the Democrats are motivated by what they're seeing happen—

Right, then you're going to lose in Florida.

You're going to lose in 2020.

You're going to lose in Arizona and Nevada. People might hold on in some of those Northern Plains states. Ted Cruz could lose in Texas. That was a huge gamble and a very scary moment for him for sure. But the problem is that ultimately—well, this isn't a court. The evidence she presented was not beyond a reasonable legal doubt or political doubt, and they realized that while she had her chance, that she was able to air her concerns, it wasn’t necessarily enough, and it wasn't overwhelming enough to completely upend his nomination.

That's why when Susan Collins makes her speech and says, “I'm going to vote for him,” there's a huge sigh of relief coming out of Mitch McConnell’s office.

Well, look, she's always been great to reporters, and she's a good senator from Maine. But if there's something Susan Collins is good at, it’s getting attention for herself, and so she did that over the course of the last few days on this. There was no reason to believe her. I never believed that she was going to vote against Kavanaugh unless Blasey Ford came forward with documented, photographic proof because she's a Republican, and she had never voted against a Republican judicial nominee nominated by a Republican president. She wasn't going to start doing it now, because she would lose all sense of support back home among Republican base voters.

Now let’s just talk for a moment about the implications of all this. How is the Supreme Court different because of what we saw happen?

I don't know that we know yet what's terribly different about the court because they're only in the midst of their first session with him there. There were some immediate changes. I think the security risk to Supreme Court—the security risk that a president and presidential candidates and certain lawmakers have faced now extends to the Supreme Court. That's bad. Shouldn’t be that way. They are less anonymous than they used to be, certainly those that are more recently installed on the court. I mean, Kavanaugh still has police protection. Usually a Supreme Court justice doesn’t have it unless they're traveling, but he has it around the clock, and he probably will maybe for the rest of his career on the court. He couldn’t walk down the steps of the court on the first day because there was a security risk, which means he’s still actively getting death threats. That's a change.

And the potential legacy of his nomination is, again, you could see far more overtly partisan people nominated to serve on the court, and that will completely change America's reverence and appreciation and understanding of that body if it goes that way. I think it puts a lot of pressure on John Roberts, too. There's a belief that he voted a certain way in the cases against the Affordable Care Act in an effort to preserve the institution as a more nonpartisan umpire of what goes on in the other two branches.

Let’s see how he deals with other cases of similar political sensitivity in the years to come. Or does he join his conservative brethren in voting a certain way and potentially irreparably damaging the reputation of the court?

I think the real legacy of the Kavanaugh one won't be known until the next one. And if it’s somebody like Ruth Bader Ginsburg who goes next, it could get even worse.

And a legacy moment for McConnell? What is it?

It's a total legacy moment. Like it or not, he has used his Senate leadership position to bolster the conservative movement on the federal courts. And if previous Senate leaders were known for shepherding certain legislation or for changing the institution, McConnell will be remembered for having helped reshape the federal courts and rebalancing, in some cases, the federal courts.

As you say, the McConnell court.

The McConnell court. No, I totally think we are in the era of the McConnell court, and we may be for some time. And we will be if a conservative majority holds and future conservative nominees are ones that were put on federal courts at a time when he was Senate leader. He may do more to preserve the conservative movement on the courts than George W. Bush or Donald Trump did in the 21st century.

During the Obama administration, what was McConnell’s strategy on Obama’s judicial nominees? What was he doing with the caucus?

It was a slightly different dynamic, of course, but they were slow-walking it in the last few years, of course, and making it very difficult for a lot of these nominees to get through. And remember, starting with Bush into Obama, it’s fights over judicial nominees that start reshaping the rules of the Senate. You had to hold a filibuster vote—a cloture vote for every single nominee. We didn't used to have to do that, but it was because of situations—well, actually Republicans would say, “Hold on a second; it started during Bush.” So this entire century, the Senate has been remade, revamped and come to be reviled because of appointments to the courts, because both parties understand that so much is at stake when it comes to the ideological balance of them.

So McConnell and Republicans are doing whatever they can to slow-walk those nominees or not even hold hearings for them, and there's very little, when you don’t have control over the Senate, that you can really do to stop that. They also weren't returning blue slips, I believe, at least in some cases, making it impossible for Obama to move forward, because Democrats were trying to hold true to that tradition knowing that one day the shoe would be on the other foot and a Republican president might not consult them on blue slips. Well, guess what? Despite their attempts to do that, Republicans don’t consult them on them anyway now.

You know, one thing we should mention and I don't know if it even fits, but I like to remind people of this: There are several Republican senators who have grave concerns about Donald Trump being president, but they would run into slow-moving traffic to support and defend his judicial nominees. Jeff Flake was his most vocal critic, certainly early on, but was absolutely over the moon about the nomination of Neil Gorsuch and the nomination of Brett Kavanaugh and the nomination of all those other federal appointments. Especially liked Neil Gorsuch because he was somebody from the West. Flake is of the belief that there are not enough Westerners on federal courts, on the Supreme Court, and agrees with Trump that the 9th Circuit should be split up because Arizona’s legal issues get swept up with San Francisco’s legal issues, and he believes that if it were changed the way Trump talks about it, it actually would help the situation in states like Arizona.

So it’s telling that despite all his concerns with Trump’s temperament and tone and behavior, Flake is one of his biggest defenders when it comes to these issues, which is why it was so telling that Flake was so torn toward the end of the Kavanaugh situation; that he was put in that position, knowing that he's retiring and has nothing to lose necessarily, especially since the president has become even more unpopular, but holding firm to his belief that it’s these kinds of people like Brett Kavanaugh that need to be on the federal courts to stop liberals from revamping American policy.

In lots of ways, Trump is extremely lucky, because he’s got McConnell, and McConnell has cared about the courts all along. So he just got on a train that runs very efficiently, right?

It's a mutually beneficial situation. Trump needs McConnell; McConnell wants to get this done and is working with the president who doesn't care but can tell the president, “If you do this, base Republican voters will love you, and we will maintain or grow our majority.” So it’s a mutually beneficial situation.

… Can you describe Kavanaugh’s testimony in the first hearing before the Blasey Ford allegations and the Judiciary Committee? It seems like everybody’s made up their mind and this is a post-Bork world. What is going on on that day?

Televised congressional hearings of that nature now are just a waste of time, because everyone’s coming in with preconceived notions designed—and all they're looking to do at that point is trip them up and sully him or bolster him and just make arguments over and over again for or against the guy. And I actually have found that the two key moments to watch a high-stakes confirmation hearing are the opening statement by the nominee and then like the second or third round of questions when they’re getting tired, because somebody inevitably tries to get under their skin and see if they will lose their cool. Richard Blumenthal (D-Conn.), I think, almost did it. I remember Kamala Harris had a moment where she kind of got under his skin toward the end when she asked about certain rulings on women’s rights.

And in the end, these senators are trying to just use these hearings to create a viral moment for themselves that their Twitter followers will love. But otherwise, his hearing, the first one, was pretty perfunctory. There wasn’t really anything there that tripped him up. And it plunged Democrats into a real sense of despair because they realized all we were going to be able to do at that point, they said, was slow him down. Same problem with Gorsuch. Gorsuch performed even more brilliantly than John Roberts, and the Democrats realized there's just no way to stop him.

But the Democrats are so siloed in all of their—I mean, Harris has her things; Booker has his things; [Amy] Klobuchar (D-Minn.) has her things.

Yeah, the dynamic for Kavanaugh was far different, because in the later years of the Bush administration, it was the Armed Services and Foreign Relations Committees that served as platforms for presidential candidates. If you told us years ago that it’d be the Judiciary and the Intelligence Committees that would serve as springboards for presidential candidates, that would have been unforeseen. But that's essentially what it was. As everyone knew going in, this is going to be a chance for Amy Klobuchar, Cory Booker, Kamala Harris, and to some extent Ted Cruz, Ben Sasse (R-Neb.) and Jeff Flake to potentially score some points ahead of a presidential run, whether it’s in 2020 or in the future. And that is a dynamic in all of these high-stakes Senate hearings that, again, sort of poisons the process but is a major political factor.

… What about on the legitimacy of the court on the politicization of the court? … Where is the court at the end of this process?

… I don't think we're going to know the real legacy of all this until we see this new court’s first year’s worth of rulings and what happens once it’s confronted with even more sensitive issues of presidential power if there are [Robert] Mueller-related challenges that come before the court. If the Emoluments Clause case ever gets to the Supreme Court, that’s when we may see the legacy of this, is when they are confronted with real big constitutional questions. Issues of affirmative action and abortion and gay rights and the environment, those things swing back and forth depending on who’s in charge.

But the real grave questions of presidential power, checks and balances, when it’s confronted by that, we’ll get a real sense of whether Kavanaugh was a partisan choice or purely ideological choice. And I think it will be a big test for John Roberts. Again, does he try to preserve the institution of the court by worrying more about where it fits alongside Congress and the presidency, or does he put his thumb on the scale and advance the conservative cause in some way by loosening campaign finance laws, by restricting abortion rights, by doing something else that might make it easier for fossil fuels to continue to emit into the air? We’ll see.

And I really do think that now we're at a 5-4 situation, if another Democratic pick goes and we're potentially in a 6-3 situation, and that sixth vote is partisan along the lines of Kavanaugh, I think that starts to really potentially mess with Americans’ views of the judicial system in general.

One question for you, Ed. Just talk a little bit about—so when Trump comes in, McConnell’s tactics toward pushing for the court to appointments, the tactics used, the speed with which it happened and what that says about McConnell.

[Clarifying question from FRONTLINE producer] You mean you're talking about district and appeals court judges?

I'm talking about lower courts as well as the Supreme Court.

Yeah, and he would tell you—McConnell would tell you, and senators in both parties would tell you, that filling traditional vacancies is an urgent priority. They know, and they're hearing from constituents and probably from donors who tell them that they have cases that have been backlogged. They know the judges who have stacks of cases sitting on their desk because there are empty seats on the bench. It’s been an urgent sort of government-management issue for the Senate for most of this century. It just so happens that McConnell would rather see people who believe the way he does on things get there, so he has this awesome ability to do that. And he knows that every time they put another round of conservative justices on the court, it scores him points with base voters who listen to talk radio and watch Fox News. It scores him points with donors who worry about this kind of stuff and with business groups who would rather see conservative justices on federal courts. It’s always a political win for him, but it’s also fulfilling a legitimate concern that the Senate has had, and that is the federal courts are overworked and understaffed.

So he knows, through his power as Senate leader, that while they may be voting on other things, they can always be working through judges whenever they come up and become ready for a confirmation vote.

But the holding up of—the fact that there were so many vacancies because of his actions during Obama years, … what does it show he’s willing to do, and what does it show about his successfulness in achieving what he wanted to achieve?

It shows that the decision he made on that Saturday afternoon in February 2016 has paid off, that you have dozens of vacancies that have been filled with conservatives, and that might not have happened had he not decided to hold open Scalia’s seat, because he made it a political issue immediately. He made it a political issue on Election Day, and it became a political issue again in 2018 that he’s going to continue to be able to do it for two more years at least. And by then, certain appeals courts that had been more balanced or had been more liberal-leaning could be tilting right. And perhaps even more importantly for certain movement conservatives, literally a bench of talent is now in place and ready to be considered for the Supreme Court as early as tomorrow.

So if you go back to when young, dark-haired and thinner Mitch McConnell stands up in the Senate after Bork and says to the Democrats, “You just wait,” it seems like the Scalia moment is the sort of supreme revenge for McConnell.

Yes, most certainly, most certainly. And it speaks to somebody who understands the power of his institution and its long-range impact far better than a lot of his colleagues. Remember, this is somebody who has worked in Washington and in Congress since the ’60s and is a student of history and knows that the decisions made today can have an impact for decades to come. And he has been singularly focused on this for decades and is reaping the benefits of his patient, methodical work over the course of his Senate career.

Revenge is sweet.

Sure is for him.