Josh Holmes

So let’s start with a little bit of the back story of Leader [Mitch] McConnell (R-Ky.). Take me back to, who is this young man who begins to appear on the national stage? What are the most important things that happened in his background?

Yeah. So some of this we’re going to have to just double-check, in terms of its specificity and accuracy. But—But look, the court system has always played an important role in the view of Leader McConnell and how this country operates. At a very young age, issues like civil rights were incredibly important to him, and he saw firsthand how the court’s handling of them shaped the country and basically, how the kind of progress that you could never make through the legislative system in terms of safeguarding the basic constitutional rights of Americans were upheld through the judiciary system, or not through the judiciary system.

And we saw a rise of activism also in the judiciary. All of these things played a very important role to a young man who was looking at American governance in a way of: “How do I fix this? How do I improve what I see as the flaws in the system?”

Where was he on civil rights that surprises people?

Well, as a very young man growing up in Kentucky, you’ve got to imagine that there was probably not a whole lot of Republicans, and certainly not a whole lot of Republicans who were extremely pro-civil rights. And Leader McConnell was one of those young men who had a deep conviction in civil rights and the equality of men and women across the country and took action. This is somebody who organized on campus. This was somebody who attended the signing of the Voting Rights Act, who was here for Martin Luther King’s “I Have a Dream” speech in Washington, D.C.

It’s something that meant a lot to him. And it was something that he—he wasn’t afraid to speak on, despite the fact that he lived in a community with mixed views, to say the least, on some of these issues. He wasn’t afraid of taking these things on. He had mentors who took things on and played meaningful roles in the passage of the Civil Rights Act and the Voting Rights Act. These were all things that were imprinted forever on his personal view of not only what's best about America, but how we could figure out how to fix everything for future generations.

… One of the other fascinating things, he spends some time at the Justice Department, and two of the people he comes across on a regular basis are future Supreme Court Justice Antonin Scalia and Robert Bork. What do you figure he learns from those two fellows?

Well, honestly, I don’t have a lot of stories about the Robert Bork side of things, but I do know that McConnell’s view of Scalia was he was completely enraptured with the mind, the legal mind of Antonin Scalia. This was someone who not only shared most of his own views about the appropriateness of the contextualization of the Constitution, or its, you know, being read as it was written, but he also had a way of articulating it that almost every single conservative felt like illuminated their own thoughts.

And one of the ways that I've heard him explain it is that Scalia often held the pen for your own convictions. And I think that was true of Leader McConnell, and certainly a whole host of conservatives behind him, about how they revered this individual and his mind as it applied to the law.

He runs for the Senate. He’s elected on, I think, Reagan’s election, and comes to Washington. And as a senator, what are his politics? Where is he in the earliest days of the Reagan administration?

Well, he was a supporter of Ronald Reagan, obviously. You know, the times were a little less ideological in terms of being able to fit into one box or another. He had strong convictions that played out in, of course, the judiciary and issues like civil rights and things that you deal with on the judicial side of the House, but, you know, I mean, I think it’s safe to say he was a pretty mainstream conservative. You know, one of the things—and this is something you may want to look back and check on—that I found really fascinating is that in the interim between his time at the Department of Justice and his first elected office as a county judge, he spent a small amount of time teaching law in the constitutional area, and some of the things that he was discussing back then you can see how they’ve sort of taken root in what has become a dominant philosophy in conservative politics with respect to the judiciary.

Like what?

Things like campaign finance, for one.

One thing that we’re doing in this film is we’re sort of landing on four kind of critical moments—Bork; [Clarence] Thomas; Merrick Garland, that moment; and [Brett] Kavanaugh—all of them in different ways barometers of where we are and where he is. And he becomes more and more central to each one of those discussions.

Right.

It’s a funny thing. When we were watching the Bork—we were wondering about Bork when we were watching the Bork hearings, and it really was the first time the Democrats really lined up to get somebody. … So I said to Mike—we were discussing it; he said, “I wonder where McConnell was on all of this stuff.” And we found a great piece of stock footage of him on the floor, really after Bork had been turned down, and he’s pissed about it. He’s really, you know, like this. And it was the first time I've ever seen him so animated. Can you give me the context for that, from him?

Well, I haven't seen the specific speech, but—but I can tell you, Bork, for many conservatives, was the first time where the qualifications of the nominee were irrelevant to the positions that senators ultimately took on their confirmation, and it became a fight over whether or not you agreed with their ideological view of the world rather than whether they can do the job of a judge, and fairly administer justice based on the law that was written.

We had speeches from Ted Kennedy (D-Mass.) and Joe Biden (D-Del.), indicating there were huge ideological elements now that were put forth as they saw fit for judges to have their support and confirmation. And that was new. That was something that obviously people who have a more originalist sense of the judiciary, like Sen. McConnell, vehemently objected to, because what they saw as an ideological test ultimately was, in their view, a mischaracterization of the role of the justice in the first place, which is to fairly administer the law as it’s written, not as you’d want it to be.

You know him well enough to probably be able to imagine him watching or hearing that debate in the committee, and knowing how he was probably reacting. How would you describe what you think his perspective would have been at those moments?

Well, Mitch McConnell, more than almost any other politician in maybe history, views things in the context of where they can lead. He plays the long game. … It’s the name of his biography, is The Long Game. He sees things not just based on the cone in which they are dealt with, but where they can lead 10, 15, 20, 30 and now 40 years down the line. And I think he probably rightly diagnosed in his own head that what was happening to Robert Bork was something that was going to become a bipartisan problem for years and decades to come.

It almost feels like he’s building a kind of grievance or a resentment from that—from what you see happening, because it—I mean, I realize that a lot of Republicans felt this way. And I don’t know whether it’s true or not, but I could sense that there was something here that really lit him up.

Mm-hmm. Well, it was an area he cared deeply about. And McConnell holds his leverage in abeyance for moments of maximum impact. He does not go out on the Senate floor and air out a grievance about whatever is on the front page of the newspaper. He sees those as giving away chits for nothing in return. What he does is focus on areas where he thinks there is a significant impact, and if he doesn’t weigh in, or if he does weigh in, there's a significant change as a result.

So when he walks out there and delivers that speech, I know you haven't seen it, but it’s great. When he walks out and delivers that speech, it’s a considered act.

You can go back through his career, and there's probably no more than a dozen speeches of significant impact where he is lit up and extremely animated, and ensuring that every one of his colleagues are listening to every word that he has to say, because he believes that those words are things that are going to come back and haunt people for years to come. He doesn’t do that about what's on the front page of the newspaper, the political grievance of the moment. He cares less about any of that. What's really important to him is setting a marker for things that he sees will come back and bite people longer down the road. And when it happens, I’ve yet to see a single moment where it hasn’t.

It’s an amazing thing that we've watched a lot of politicians at these sort of, you know, “the moment,” origin moments for them, and there's always a little—there's a little thing of grievance, and there's a little thing of revenge that’s in their minds, that, you know, some future, future date—

You’ll rue the day, right.

Yeah.

Well, there's a couple of good examples, I think, that intersect with what you're doing here. The one that I can think of that is most significant was the last speech that he gave before the passage of the McCain-Feingold campaign finance bill, which ultimately set a new ground for campaign finance law in this country. And the case that he made was that you were going to regret this, and you're going to regret it sooner than you think. It was the same case that he made to Harry Reid (D-Nev.) when he was about to change the rules of confirmation process for judges.

The so-called nuclear option.

The so-called nuclear option. And what he said, basically, was that there's not a court in the land, if they're following the Constitution, that will uphold the limits that you’ve put on donors. And when they don’t, all that means is what you’ve done here today is decentralize the role of the party in politics, and ultimately the birth of what we now know as super PACs. And for anybody who was a campaign finance reformer at the time, I don’t even think they could have conceptualized something that they would like less than that eventuality. But that is a perfect example of how McConnell saw this train coming down the road, based on his understanding of the judiciary, and was going to lay a marker for all of his colleagues to go back and look at later on.

… So then, when he’s sitting there watching the Democrats, Biden and Kennedy most particularly, working over Bork, what’s he seeing?

My bet is what he’s seeing is a whole bunch of folks who are playing for today’s victory, and they're sacrificing huge losses tomorrow, and he’ll be darned if he’s going to allow them to just get away with taking somebody out without paying a price for it later on down the road.

Given what we know about him, it’s about to come home in spades in 2016, ’17 and ’18, isn't it?

It is. It is. Well, I mean, look, most conservatives feel like the judicial debates have been one Democratic infliction of pain after another upon conservatives, right up until Merrick Garland. And McConnell fundamentally changed that for conservatives to play their first round of offense on the judicial debates in over 30 years.

Is that payback or revenge?

It’s taking what the cards are, have given you, right? He didn’t start the game. He was finishing it.

… Let’s flash forward to the Merrick Garland moment. And just before we get there, since the Obama administration, Mr. McConnell is the leader, lots of things we’ve read that he said, you know, deny, deny, deny, or whatever he said, “Let’s slow this all down; let’s be the opposition,” were you around for any of that? So, you know, what was the plan?

I spoke to him that morning, yeah.

Yeah. So what did he say? What was the idea?

Well, the first thing I remember is, after calling him and checking in—I knew he had a deep affinity for Justice Scalia and was probably emotionally moved by what was a totally unforeseen passing—we spoke about it. And, you know, he had indicated that he had done some brief research and couldn’t remember a time where they had, in the last year of a presidency, confirmed a justice. He remembered ultimately Justice Kennedy’s confirmation coming in the final year, but that was all wrapped up in the Bork confirmation or denying of his confirmation, so that vacancy actually occurred years before.

He thought that there was ample precedent, and it turns out he was right, for a president in the last year of their presidency to not be able to pack the Court with their final pick while voters were actually voting on their successor. And he felt like he was on very solid ground to make the case to the American people, “You be the Judge. You decide who it is that gets this appointment.” And at that point, you’ve got to remember, that’s a pretty risky gamble, because you had what was an unwieldy field of Republicans, a 17- or 18-strong, with now-President Trump leading the way, folks like Ted Cruz (R-Texas) out there, Marco Rubio (R-Fla.) and others, versus an almost certain nominee with Hillary Clinton—Hillary Clinton, who, if you were a betting person at that stage, in February of 2016, you would almost invariably put your money on Hillary Clinton winning that election.

That being said, obviously it didn’t turn out that way, and I think there are several really important developments, starting with the day that he decided that they were going to leave this up to the American people.

So let’s walk through it. So Scalia dies, and the leader is in the Bahamas or someplace. …

Yeah, almost right away, he knew what they were going to do. The question is, how they were going to do it. And there were a couple of important things to consider. One was, he had an inordinate number of Republicans on the ballot in 2016, in very difficult states, purple states. They were going to be difficult to defend. And he knew that those members were going to be extremely concerned no matter what the decision was.

Second, that evening, there was a presidential debate. And if you’d seen presidential debates at any point up to then, you knew that not only were they unwieldy, but they had a high propensity of coming out with rhetoric that was absolutely untenable to those members who were representing those purple states. Fear, of course, is that somehow this idea of holding open this seat until the next election is first articulated by one of the candidates for president and not the majority leader of the Senate, Mitch McConnell himself. And if he were to articulate it, he would have a much better chance of talking to his members and making it make sense to them than for them having to follow the lead of a presidential contender who was almost invariably tacking to the right and making it more difficult for their mainstream constituency to support that decision.

So that’s it. So why do you think he wanted to do it that way? Why take this gamble?

Didn’t have a choice. He didn’t have a choice. I mean, ultimately, the decision, if you were to not make it that day, you would leave it up to pure chance about whether or not it was touched on that evening by someone that his colleagues would deem to be objectionable. And it would be their idea. They're the ones that would be the driving force behind keeping it open. And there is no way that you would keep the Republican conference together if that was the result.

He couldn’t just say: “Wait a minute. It’s this other president, he— There are—Elections have consequences. Obama gets to pick. That’s the deal.”

Look, he’d already made the decision that this was going to be up to the American people. The question was how, and the “how” piece of it was on a timeline that was much quicker than he probably would have—anybody probably would have liked. But it was necessity if it were to be executed. These decisions could not be made with full consultation. They had to be done with ruthless execution and extremely quick, but extremely well-founded way. And he did the research, came out with his view, executed it, and then spent the next two months, every day, all day, working with his colleagues to ensure that they could execute this plan.

And Obama’s response, Obama being Obama, feels like, when we talk to people around that, feels like what he tried to do was pick a candidate, pick a justice, a potential justice, a nominee, that would be designed to pull six or seven or four or nine moderate Republican senators over to his side, so he picked Merrick Garland. That seems to have made it about as hard as possible for McConnell to hold onto his party.

Yeah. Well, you’ve got to remember

So walk me through that.

Well, you’ve got to remember, President Obama didn’t know Leader McConnell very well. They had worked together as president and minority leader, but there was no real effort by President Obama to reach out and embrace Leader McConnell and try to work together on legislation. His only interactions with Leader McConnell, or even the legislative body at all, were when he had supermajorities in the House and Senate, and were jamming things like Obamacare and Dodd-Frank and the stimulus through. So it was almost always an opposition.

They had a few deals that they did, largely done with Vice President Biden and Leader McConnell. The president himself did not know Mitch McConnell and underestimated his willingness to pursue a stated goal significantly. It was the view espoused in every publication by every single Obama official, including the president himself, that McConnell was going to cave on that. And for anybody who’s spent more than three minutes around McConnell, you know he’s not going to do that. And he was going to go to the ends of the earth to try to preserve the promise that he made that day, that they would not be filling that seat, that the seat would be filled by the American people.

So again, filling—having that come out before the announcement of who the nominee would be became a matter of principle to his conference rather than a matter of personality, and whether or not they had a problem with Merrick Garland. So in some ways, the president was trying to get ahead of all of this and provide a personality that was least objectionable to his colleagues. The problem he had is that three weeks leading into it, Mitch McConnell was talking to every single one of his colleagues about the principle of it, that it didn’t matter who he nominated; that ultimately, he could nominate the man in the moon and we wouldn’t be confirming them, not because of their qualifications, but because of the principle that we do not confirm someone in the last year of a lame-duck presidency.

And how did he hold [them] in place? I mean, some of these guys came out and said: “We love Merrick Garland. We love him.” And as far as I know, he doesn’t blackmail his members. So how did he hold them in place?

Again, part of the secret of Mitch McConnell’s leadership is he does not make demands over frivolous things. He does not wear out his welcome among his members. He does not dictate to them what they can support and can't support. So they know, when he comes to them with a very significant request, they know it’s for a reason. It’s something that is extremely deeply held, that he sees as something that moves the ball in a significant direction. And so this isn't—this isn't about winning a political fight. This is about fundamentally changing the shape of the judiciary for generations to come.

Again, this was an ongoing discussion. There were members that were extremely uncomfortable on the front end. They tried to figure out whether or not there was a way to bridge this gap by holding hearings, basically, for Merrick Garland. And ultimately they were all convinced that that would only make the problem worse, that then the principle that McConnell had articulated the day of Scalia’s passing wouldn’t be what they were fighting over; that they would, in fact, be fighting over the personality and the legal qualifications of Merrick Garland, which McConnell successfully argued were irrelevant to this process.

Why wouldn’t they even meet with Merrick Garland?

Well, part of the reason for that is—and it’s going to be hard for liberals to digest this—but part of the reason why they did not want to put hearings together or formal meetings together with Merrick Garland is because they didn’t want to subject a nominee that was ultimately not going to get a vote on confirmation to the same kind of scrutiny that we’ve ultimately saw play out with Justice Kavanaugh or we saw begin with Judge Bork. We knew that, in this high-pressure, politicized environment, where a presidential election had actually started, that partisan emotions could not be higher, that there is no way to rein in a complete and utter catastrophe from the debate standpoint once you started about the personality of somebody. And that was ultimately going to be all to the detriment of Merrick Garland without any prospect of exonerating himself with a confirmation. And so I know it probably doesn’t sound altruistic, but there is an element of it, that that’s what their consideration was.

So how hard was it for him to hold everything together?

Very difficult. Very difficult. His calculation, which proved correct, was that Democrats cared much more deeply about the results of a presidential election than they did about the judiciary, and that all of the time, effort and resources that they had dedicated to pushing the Merrick Garland issue, pushing the Supreme Court issue, advertising in states, that all of that would eventually evaporate about the time the nomination was secured for Hillary Clinton. And sure enough, that’s exactly what happened.

And so the issue on the left went away, right about the time it started animating the folks on the right, because people on the conservative side of the aisle now all of a sudden saw an opportunity, an opportunity that was very specifically articulated when now-President Trump put out a list of potential nominees that he would nominate if given the opportunity.

So let’s go to the list now. So by now, of course, the Federalist Society, which we talked about from their genesis, is a formidable group of attorneys, and has created a kind of minor league-major league system for preparation for judges who meet the test. So give me a sense of where the Federalist Society was, in terms of its own growth, maturation and power in let’s say, March-April of 2016, as Trump is about to receive a list at Jones Day.

Yeah. I mean, look, your power is only as good as your ability to execute it, right? And for eight years, conservative legal minds had no way to execute any power. President Obama held the keys to every single nomination. But in the meantime, you could be prepared for the case that if you ever got the opportunity, boy, we can really take advantage of it. And Sen. McConnell knew that. He urged President Trump to meet with conservative legal minds and helped formulate a list. This was probably in June, I would say maybe late May, early June of 2016. It was sometime between Indiana and where the list came out.

Where would they have met, McConnell and Trump?

It was in D.C.

Was it on the phone? In D.C. somewhere?

Yeah, it was in D.C. It’s hard to remember all of these meetings. But Trump had come to D.C. at some point between his victory in Indiana and ultimately his nomination. And one of the points of discussion that Leader McConnell had made a priority was to ensure that the president got all the resources that he needed in finding a justice that was worthy of support. His view, of course, was that the conservative element of the electorate that was perhaps a little reluctant or unclear about not only Donald Trump, but all of the Republicans at that point, would be motivated in a much clearer way if they knew exactly what you were going to do with the judiciary if you got your hands on it, in particular the Supreme Court. And so he asked the president at that point—and I think Don McGahn was part of those conversations—to begin putting out a list that he would make public.

Who is Don McGahn at that time?

He was his lawyer. I think he was at Jones Day. But he was the general counsel on the Trump campaign.

And the role of McGahn in this process, Federalist Society member himself, how does it work with McGahn?

Can't be understated. So one of the things that you have to know, Leader McConnell, because of his background with campaign finance and his Supreme Court litigation with campaign finance, has always taken the issue extraordinarily seriously. And one of the appointments that he always takes most seriously was his ability to appoint people to the Federal Election Commission. His choice was Don McGahn. So he’s known Don for many years.

And they had a mutual trust. They have interacted over the years. They understand where each other are and issues that they are extremely concerned about, and they know that they have a mutual understanding of what a good justice would look like. And so that mutual trust obviously helped build what ultimately was the president’s arsenal of conservative judges.

…What did McGahn have that qualified him to be that guy for McConnell?

I mean, just a synthesis, just a symbiotic understanding of conservative law, and in particular First Amendment issues, which have always been an extremely strong part of McConnell’s view of the judiciary. He is a First Amendment purist. He was one of the only Republicans to vote against the flag-burning amendment. It was ultimately one vote shy of passing the United States Senate in the mid-2000s. And Leader McConnell didn’t vote for it. So this is an issue set in the First Amendment that is extremely important to him. And Don saw things very, very similarly.

This is an interesting—another new McConnell fact, right, this idea that he would pop up voting that way and stop that other.

Yeah, to his own great political peril. I mean, you can only imagine what it was like having 59 votes and virtually your entire conference of Republicans supporting a single amendment, coming one vote shy and you ultimately not supporting. I mean, that’s conviction if there ever is any. And ultimately, he saw that—saw the world in that context, very similarly to, you know, a lot of the very First Amendment purists. There was weird alliances between people like Robert Byrd (D-W.Va.) and the ACLU at that point, an interesting cross-section that doesn’t fit ideological lines but is very important from a judicial standpoint.

… So there was a meeting at Jones Day, the way the story goes. We’ll try to get at the bottom of it. Obviously we won't report it if we don’t know it.

Yeah. I mean, the only McConnell component to that was suggesting that he put together a list in the first place and then make that list public. It wasn’t just sort of for internal consumption.

And McGahn is carrying—I mean, he’s the Jones Day guy. I know that Trump goes over there. We’ve got video. He arrives. He goes in. The meetings happened. He comes out, and he has a list. So hmm. Maybe— or at least he talks about a list. So the power of the list? The meaning of the list? Why does it help Donald Trump to have that list?

What the list was was a very clear message to any conservative that whatever you may think about sort of the different structure of this campaign, and maybe not as ideologically in line with many of the other Republican candidates, that this is somebody who you can count on for what many of us would see as the most important decision a president can make, and that’s an appointment to the Supreme Court. This was a validation, in a sense, that if you vote for me, this is what you can expect from your judiciary—no ambiguity, no question about it.

So that night, election night. … So take me to where you were and where he was, and what you imagine he was thinking about, where on the pecking list of things he hoped for; certain candidates had to win; he had to hold onto some seats.

So Leader McConnell, Sen. [John] Cornyn (R-Texas), who’s the majority—yeah, majority whip at the time, were in the basement of the NRSC [National Republican Senate Committee] watching the results come in. And they, of course, as a member of Republican leadership in the Senate, have primary responsibility over the election and re-election of their colleagues. First thing that they're watching, obviously, is those eastern states as they roll in from the Senate to see if they’d held their majority. It became pretty clear, pretty early on, with a victory in Indiana and a victory in Florida and victory in North Carolina, and it looked like we could win in Pennsylvania, and all of a sudden Wisconsin is on the board, it became pretty clear that the Senate majority was going to be held.

What was also becoming clear is something that I think most people didn’t think was going to happen, which was President Trump was leading the way in states like Pennsylvania and Michigan and Wisconsin and places that hadn’t been carried by a Republican presidential candidate in decades. He was poised to win. And Wisconsin—I think Wisconsin reported the results. And their colleague, Sen. [Ron] Johnson, was re-elected, improbably, in a very difficult race. And in their enthusiasm, they were celebrating, high-fiving.

And it occurred to Sen. McConnell, this also meant that President Trump was going to be president of the United States. And he turned to his colleague and said, “Looks like we’re going to be making America great again.” And I have to think that a big part of that is what he saw as a coming to fruition of the plans that he had for the Supreme Court.

Yeah, I think so, too. When—

You’ve got to remember just a couple things. McConnell, when I was saying that he holds his leverage in abeyance and he only executes it when it matters, when it’s going to make a big difference, this is one of those perfect scenarios, because you don’t know a lot about how a presidency is going to play out. You don’t know a lot about the personalities involved. You don’t know what kind of issues you're going to encounter. You know, Lord knows, nobody thought that when George Bush was elected that nine months in we’d be having 9/11 and embarking on the war on terror. You don’t know what fate has.

But what you can control, and the one thing that has absolute total solidification over a period of time, is the judiciary. Those are lifetime appointments. It’s the one thing, if you're in the United States Senate, and that’s what you can control, that you can control. And while everybody else is talking about what this means for X, Y and Z, McConnell was focused on the one thing that he knew would make a generational difference for conservatives over a period of time.

[Neil] Gorsuch sails through, and the name Kavanaugh comes up. The way we’ve read about it is that he, Leader McConnell, wasn’t really in favor of Kavanaugh at the very beginning, partly because, I think, of his massive paper trail behind him. Tell me about that.

Well, he was—he has known Justice Kavanaugh for a long period of time, as had most Republican senators, this is someone who had been in the Republican legal community for decades, had played an incredibly important role in that, had a contentious but ultimately successful confirmation in the early 2000s, sat in the middle of President Bush’s administration, played a critical role there. This was not a stranger to anybody. Everybody knew Brett Kavanaugh.

McConnell revered Brett Kavanaugh, thought he was brilliant, legal scholar. At some point, the timeline became something worth discussing, because we were dealing with a summer and fall short calendar for a confirmation before an election, where you didn’t know what the outcome would be. And if one thing goes wrong, it’s almost impossible to restart the engine. And you can ultimately see how the Democrat strategy to kill the Kavanaugh nomination was based on that same thing. It was based on trying to buy enough time where, if you got to the point where you could take a single shot and knock him out, they couldn’t recover. There would be no way to reappoint someone. And if you could figure out how to take the Senate in the process, you could repay Republicans almost exactly the same way as they paid them with Merrick Garland, in denying a confirmation for a President Trump pick.

And so McConnell’s view was, you should mitigate all risk in the longevity of a confirmation. And of course Kavanaugh had a long paper trail. But McConnell’s view was, this is the president’s decision. My decision is, what kind of recommendation should I make, right? These are all the things that you need to consider. At no point did McConnell ever take a view of, “This is the person you should appoint; this is the person you should not appoint.” He saw his role as providing the president and Don McGahn with the best advice he could, on the operation of the Senate and ultimate confirmation process. What would it look like? What were your prospects for success? And he mapped that out with the entire short list of the president.

…So I watched that first day of the hearings, sort of I just watched it again last weekend, and it’s like everything’s sweet and nice and everything. He walks in, and everybody’s at their positions, and [Chuck] Grassley (R-Iowa) drops the gavel. He looks up, and he starts to talk. And somebody in the crowd starts to yell, and somebody else starts to yell. Then there's the back-and-forth with the Democrats. There's 42,000 documents last night or whatever they said. And it’s just all hell breaks loose, almost right away. Can you imagine McConnell sitting in his office or something, watching this happening? Would he have anticipated that it was going to be the circus, or would he have said to himself, “Uh-oh”?

I don’t think we anticipated the kind of circus that it was going to be. I think Leader McConnell had been around long enough to know that some of his more progressive colleagues were going to try to make a stand to distinguish themselves from other colleagues, to kind of give themselves a platform for 2020. You’ve got to remember, within that Senate Democratic conference, there are at least four or five who have a strong interest against running against President Trump the next year, and on that Judiciary Committee in particular, there are two. And so there was no doubt in anybody’s mind that they were going to try to use these hearings as a platform to bring attention to themselves, to ultimately increase their political profile, because in the Trump era, there is not more than a handful of topics that have been on the front page of every newspaper and the lead of every newscast for 10 straight days, and this was one of them.

What was he worried about, do you think?

At the beginning of the hearings?

Yeah. I mean, I can feel that you’ve already said, I can feel the midterm clock ticking. I can feel, as you say, this has got to go kind of pretty smoothly, or we’re going to get up against it. And that’s how they're going to get us. They're going to just slow it down, and we’ll find ourselves in an election, and then who knows what happens?

So I've done confirmations and opposition on several different nominees, and the one thing that the majority party or the party that’s defending a nominee takes comfort in, great comfort in, is that when it’s their day, when it’s their moment to sit in front of that committee, you're almost all the way home, because that nominee, if you’ve done the work that you were supposed to do in the vetting and nominating process, is going to know a hell of a lot more about the law, about its application, about their own record, and about every single hot button you can come up to than anyone on that dais. And there's a lot of make-believe lawyers that are sitting there, grandstanding, trying to pretend like they’ve got an angle on somebody, and almost invariably, they're shot out of the water and made to look like an idiot.

And you know, within moments, we saw Spartacus confirm that point of view. All of a sudden, this was not about whether Brett Kavanaugh had the legal qualifications; it was about a theatrical performance by a potential 2020 nominee, which again, helped Brett Kavanaugh, helped Republicans get to a point where they could solidify their conference and ultimately confirm him.

What you fear is the unknown. You don’t know what you don’t know. And if there is something out there, some bombshell to drop or some way to captivating media attention, to again prolong the process, which we knew was everybody’s goal, then you could have problems. But with somebody like Kavanaugh, he was so clear, his legal record was so clear, that you felt like, once you got to the nomination process, you got almost all the way home, because he was going to carry the ball from there.

And then?

Yeah.

Dr. [Christine] Blasey Ford.

Right.

Let’s go with initial response to hearing about it, hearing about her.

So it’s important to know that, within the Senate, there is a very specific way of dealing with this. This is not an uncommon occurrence for nominees. Almost all high-profile nominations that are front-page headlines, big, big coverage, ultimately public viewing of the hearing themselves, almost every one of them contains significant allegations, almost every one of them totally unfounded. But, because of the nature of the publicity, these allegations come up all the time.

And because almost every committee has a way of dealing with them. They sit down, months ahead of time, with counterparts across the aisle, litigate these very significant charges in a way that everybody becomes comfortable with before you go to closed hearings. And then ultimately, if you get to closed hearings and you still haven't resolved it, that’s the place where you’d do it, because you know that if you take a salacious allegation, something that is going to captivate the news media everywhere across the country, and you just throw it out there, pull the pin and throw a grenade into a room, it will explode. And there are no winners. It hurts the victim, the alleged victim. It hurts the nominee, who has no ability to defend themselves. You can't get to the truth, because it’s become a political process. There is no truth. Now it is a complete mess.

And that’s what most Republicans were reacting to immediately, was that this is the ugliest way of possibly getting to a point of mucking down this nomination, because we could have dealt with all of it. And once the timeline became obvious that this was information that people had three months beforehand, that they chose to withhold from the committee, that they ultimately interviewed and dealt with attorneys alone from a minority staff point of view, it felt—it looked and felt a lot like a setup.

And the anger in those initial hours was palpable, because they felt like what we've done here is introduce information to the public that has not been vetted, that has not been litigated, could be not true at all, could be true. But I don’t know that we’re ever going to know, because now we’re talking about it in the most public, political, possible way, and it will almost invariably go on both of their tombstones.

McConnell has been around a long time, and you’ve been around him a long time. How did he act when the revelation that there was a Dr. Blasey Ford and that she was making the allegation she was making, what did he think? What was his reaction?

Well, not only him, but all of the Republicans who had been through a nomination process like this before had a very difficult time with how we landed here in the process. Long before you get to Dr. Ford or any of the specific allegations that she had submitted, your primary concern is, here is a woman—we don’t know whether she has been volunteered herself or not to be in the middle of the biggest firestorm in the last two years. But she’s there, and there's nothing we can do to remove her from it. This is why we have built institutions to handle these kind of allegations, where we can protect people who are making allegations in addition to the nominee, so we can prevent this situation.

So I think the initial—you asked what the initial reaction is. The initial reaction is, how dare you put somebody like this in the middle of a political firestorm, where you know darn well it is likely to ruin their reputation no matter what, no matter what? And it was just a—There's just a palpable anger, palpable anger, because at that point, it’s not even about Judge Kavanaugh; it’s about this woman who we hadn’t met yet being injected—She’s a private citizen, lives in California. Nobody knows anything about her other than the investigators who had apparently dealt with her for three months previously. And now she’s in the middle of the only story of 2018 that was on the front page of the newspaper for 10 straight days.

People aren’t built to handle that. They're—The average everyday person cannot handle that kind of scrutiny without significant ramifications. And your goal in running an institution like the Senate or the Judiciary Committee is to try to prevent Americans who have serious allegations from being subjected to complete character assassination, which was inevitable with the process that was displayed.

When she testifies, you know, in lots of corners of America, there's not a dry eye. There's a lot of people who are like, you know, “Oh, my God.” The leader, how did he feel? This is the break. This is where he says to Trump, “Hey, we’re only at halftime.” What does he mean by that?

Well, I think both the president and Leader McConnell found her testimony to be incredibly compelling. This was somebody who clearly had thought deeply about the allegations that she was making, that she was on her face credible, and that it was something that this committee was going to have to take extremely seriously. But in our country, we also have the opportunity to defend yourself. And when the president and Leader McConnell spoke, the point that Leader McConnell wanted to make was, everyone has an obligation to listen to the other side before we come to a conclusion. And that’s ultimately what he meant by that “We’re at halftime.”

The president seems like he was walking away from Kavanaugh at that point.

I just don’t know. I mean, I wasn’t on the phone at that point. But they had made—Republicans at that point had made a big point to ensure that Judge Kavanaugh would have his opportunity to defend himself. The whole argument before this hearing was, surely the nominee has an opportunity to defend himself from these charges that are being made. And so, you know, obviously you can't do that with only seeing one side or only hearing one side of the story.

He’s in a room writing a statement, Kavanaugh. McGahn is in and out. I think the president has somehow communicated to him, you know, “Go after her; go after it.” Do you have any knowledge about what was going on in that room as he was writing that statement?

No, I don’t. I do know that there are a number of Republicans who felt like the decision to put Judge Kavanaugh on Fox News to discuss his point of view ultimately felt a little less emotional than it should. And the reason for that, of course, was that this is not a professional actor that we’re dealing with. We’re dealing with somebody who is trained to be the best legal mind in America. Their idea of success and expertise has nothing to do with how they emote across the camera, so that sort of recognition was actually causing problems within his vote count in the Senate.

Ultimately, if that’s what was spurring on the decision for him to just sort of open it up, I don’t know. But I do know that people were looking for something a little bit more raw. They were looking for him to just sort of give us the inner feeling of what it felt like and what his point of view is on trying to defend himself from charges that invariably will be with him forever. And you know, that’s ultimately what he did.

Can you describe what you saw when Kavanaugh came out and delivered his response, his rebuttal?

Yeah. Well, I saw someone who was clearly impacted by the previous two weeks, and not in a way that was just imperiling his career, but somebody whose family sat behind him, and you could feel how it was tearing at them, about how his daughters were dealing with this. And he articulated about, you know, what he would tell his daughters, and what they would say back, about what's happening to him. And it was something that sort of lifted the hood on what this whole process had done to a family. It wasn’t about the judge, what kind of judicial decisions he was going to make. It was about the kind of process that the United States Senate had fostered for their judicial appointments.

And you had to ask yourself, at that point, why in the world would anybody want to do that? No matter what your ideological persuasion is, could you ever imagine switching places with Judge Kavanaugh in that moment? And I think that’s where an awful lot of support began coming back to Judge Kavanaugh. I think most people believed him to be a good man. They knew him personally. It wasn’t the first time that they were meeting him in this process. They had dealt with him over a long period of time. But they needed to see he was human, and there is nothing that articulated that and showed the American people that more than those first few minutes of that testimony.

Some people who watch it say, “But by talking about the Clintons, and by making”—some Republicans, some members of the committee who were interviewed later said they thought, hmm, maybe he went a little far in some of that stuff, and maybe that harms somebody’s ability to be a judge with rectitude and whatever, when he’s been so political at some moment in his speech. Your thoughts?

I was— I always thought it was an interesting critique to accuse someone of being a serial gang rapist and then simultaneously accuse them of having a poor temperament when they react to that. I can’t imagine ever knowing anyone who wouldn’t come out of their chair at an accusation like that. I felt like the imperfections in Judge Kavanaugh’s testimony in some ways helped him, because it was not rehearsed. It clearly came from inside him. It clearly was an emotion that he needed everyone to see and understand this was a process that had been broken, shattered over a period of years, and now he wasn’t the victim. His family was the victim; Dr. Ford was the victim. The country was the victim. We were watching in real time what our system was doing to people who chose to serve their government, and it was a tragic shame.

The next morning it’s time for the committee to vote. Jeff Flake (R-Ariz.) has announced that there is like three or four people on the bubble.

Yeah.

There is [Susan] Collins (R-Maine) and [Joe] Manchin (D-W.Va.) and—

Well, Flake had committed to vote for him the night before.

Yeah, and Flake is—Flake used to be on that bubble. We’ll cover each one of those people a little bit in just a second. Let’s just stay with Flake for a minute. He is coming down in the elevator—we’ve all seen it. A woman or two stops him and goes after him a little bit, arguing with him and telling him the harsh truth from their perspective. He looks shaken, and when he comes into the committee room he seems—I watched it half a dozen times trying to see if I see anything. We know Flake a little bit. We have interviewed him, as you know. What do you make of what was going on with Flake in that moment?

I don’t know. I know that there is, there was a strategy deployed by the opponents of Judge Kavanaugh’s nomination to in a sense try to intimidate Republican senators in their own workplace, and they had a very finite list of senators that they were attempting to intimidate, and those senators were ones who ultimately the confirmation failure or success rested upon: Jeff Flake, Susan Collins, Lisa Murkowski (R-Alaska), Bob Corker (R-Tenn.). They all experienced significantly more aggressive contact with people screaming at them as they were trying to go vote than I ever remember in the United States Senate.

Generally speaking, order is kept in the halls of the United States Senate. There is not a protest around every corner. The Ohio Clock Corridor is filled with reporters who are credentialed, not filled with activists attempting to throw things at United States senators, so this is a very changed atmosphere. And I think some reacted differently to others. To people like Susan Collins, who had been dealing with this kind of thing for decades, who she sat on the very edge of determining passage or failure of almost every major piece of legislation over decades in the United States Senate, this came with the territory. She knew the stakes. She had experienced the emotions. She knew what orchestrated rallies looked like, and she also knew what genuine support feels like. And to try to intimidate Susan Collins was about the worst strategy you could ever come up with.

For somebody like Jeff Flake, at that point in his career it did have an impact, and ultimately he used it constructively in that he understood that there were some unanswered questions that his colleagues had about the FBI background check, about whether or not we had all the testimony [of] the players involved to try to get as close to the truth as we possibly could about these allegations, and he had spoken at length with a number of senators, the ones that I’ve mentioned and in leadership, about different ways to try to get to that. And at some point that morning he felt like he was going to take action on it, and he was going to discuss a way to find as much truth as you could possibly find that also had a firm deadline and wouldn’t allow the continued degradation of the process and just simply delay to delay.

And they had a meeting after he came to this conclusion and expressed it in a Judiciary Committee. They had a meeting in the leader’s office, where Sen. Flake amongst others indicated that what they were trying to do was just make sure that every piece of information that was possible to obtain by the FBI was obtained by the FBI and that they could file a formal report no less than a week later, indicating this is all there is to see about this. And they put hard deadlines and they agreed to parameters of what they were looking for, folks that they had been identified in the course of the Judiciary Committee hearing, both publicly and privately, and they would have those interviews.

And in the end that process certainly made Jeff Flake feel more comfortable, but I also think in the end it gave the American people more comfort in knowing that this isn’t something that people were just trying to slam through; that they actually had the interest in finding the truth and got as close to it as you ever could once you unveiled a process that was as regrettable as this one.

What kind of pressure was the leader under in that meeting? What is he worried about?

Well, look, McConnell knows the game plan. One of the reasons he is as good at his job as he is, is because he can play his own hand at cards, and he can also play his opponent’s hand at cards. He knows exactly what they’re trying to do. And he knew from July that the one thing that you could do if you were a Democrat was draw this sucker out as far as you possibly could and just hope for rain, right? You just keep drawing it out, keep drawing it out, keep trying to find more problems to the point where if you end up stopping the nomination it’s irrecoverable; you’re not going to get a Supreme Court pick. So he knew what was happening there.

I think one of the things that was most important to him is that we come to a conclusion that this is going to hit the floor, and he told his colleagues: “You are voting on this nomination. This is not going away. We are going to get to the bottom of it, and we will vote no less than a week from today.” And that is ultimately what happened. But it was important for everyone to understand that you’re not getting out of a very difficult set of circumstances. For most politicians you’ll avoid a tough vote no matter what, and you just sort of sit back and hope it doesn’t come. This was an important moment for not only Leader McConnell but the administration and all of the members of the Judiciary Committee and the larger Senate to understand that there was no dodging a vote on Judge Kavanaugh. This was going to happen, and you were going to get as much information as we could possibly provide to you before it does.

…Was he having to hold Trump in place?

I never got the impression. They had an awful lot of conversation. There was a—you’ve got to remember judicial nominations are the one really conventional thing that this administration has done, and part of the reason is the relationship between McConnell and McGahn. But another part of the reason is the discussions between McConnell and the president and McGahn all on the same page over a long period of time. And so there was never any question about where anybody stood on things, and I think McConnell took great comfort in knowing that somebody like Judge Kavanaugh, when he became a political millstone in those first few days, wasn’t going to get his nomination pulled, because he knew that President Trump was going to stick by his nominee. You don’t know that with every president, but you knew it with Trump. And it allowed him to then put a strategy in place to get an outcome, because if you feel like you have embarked upon that strategy to get an outcome and somebody pulls the rug out from underneath you, it’s going to be a disaster for everyone, including the nominee. There was a mutual trust there, and they felt like they could proceed full throttle.

A lot of people were very surprised to hear that it was only three or four—that there was a pretty straightforward thing with the FBI. Despite what the White House said on Monday, it was a pretty straightforward—it was [Mark] Judge and a couple of other friends, and he talked to them, and that is kind of it. It wasn’t an investigation that was any bigger than that.

A couple things. The first part of this is Democrats, in my view, made a significant strategic error in the opposition to Kavanaugh in that more than half of their conference came out on day one to oppose it, meaning any sort of revelation at all would not change their vote, good or bad. They were already in opposition. So, details be damned, no matter what happened or what was uncovered during the course of a four-month fact-finding mission, they were already in the opposition category. They threw their votes away on day one. The remainder went very quickly, including every single member of the Senate Judiciary Committee, so where is your leverage as a Senate Democrat to try to demand more information if you have already told everybody how you’re going to vote?

So ultimately what the investigation boils down to is who are the people who are still open, are still undecided, and what do they need to know? And they are the ones that articulated very specifically what they needed to know. And everything that they asked for they received, everything, provided it fit in the timeline that was allotted and agreed to with them on the front end. They got through everything. Everything that they asked for was in the FBI reports and provided a week later. But it was the votes that matter that count. It was the people who had already said: “We’re open here. We just want to find the truth.” There wasn’t any leverage left for Senate Democrats, because there wasn’t any of them, other than Joe Manchin, who hadn’t committed himself to vote against him.

Let’s talk about Lindsey Graham (R-S.C.) a little bit. He is both entertaining and forceful at a number of moments in this hearing, once taking over for the interlocutor, the investigator who had come in to speak on behalf of the committee. Talk to me about Sen. Graham’s role in all of this.

Yeah. Well, conservatives have had a love/hate relationship with Lindsey Graham for the last couple of decades, because on one hand he is certainly the most open-minded Republican senator from the South in terms of a whole bunch of center-of-the-road issues. Things like immigration reform that are an anathema to most of his colleagues, he has always been a proponent of, and consequently he has been given probably more respect by Democrats across the aisle than an awful lot of Republicans. Conversely, there is nobody who prosecutes an argument better than Lindsey Graham does, a conservative argument, when that is where his head's at. And in particular in the Judiciary Committee, this is somebody who has a legal background, who has prosecuted cases before, who understands deeply the showmanship aspect of what you’re trying to accomplish, and we had a Judiciary Committee that is largely made up of a bunch of Democratic showmen and a bunch of Republican fact-finders, with the exception of Lindsey Graham, and Lindsey Graham took the opportunity to encapsulate what he saw was this miscarriage of justice in a way that galvanized for the first time the Republican grassroots lock, stock and barrel behind not only Judge Kavanaugh but Senate Republicans who were trying to confirm him.

And again, it was live TV for everyone to see. They had made a strategic decision to go with a prosecutor to ask questions, to build a case that they could have a formal report on and show senators in the end. But that only does you so much good when all of this is theatrical and it’s playing out in front of the American people, and Lindsey Graham understood that. And when it was his moment, he decided to give the people what they were looking for, and it was a turning point in the nomination.

Was there a moment of maximum peril for McConnell?

In that, in the nomination?

Yeah.

Hard to say. Everything—I mean, look, in that job, I feel like everything is one half step away from—I mean, it’s just the risks you take. I don’t know that there is any moment that Republicans felt like it was certainly lost. There were certainly moments where Republicans felt like it could be lost. But again you’re dealing—the fate of Judge Kavanaugh rested with a very small number of Republican senators, and if they were getting the kind of information that they needed, McConnell’s conclusion was that they would come to the same conclusion that he did.

Remember, this is a guy who spends all of his time around all of these colleagues listening to them. He knows their process. He knows what they react to. He knew you couldn’t intimidate Susan Collins, right? He knew what Susan Collins needed to deal with was information. If you could provide all of the information that she requested and that she needed to make a decision, he was confident that she could come to the same conclusion he had based on all that information. And so again, understanding the process of his colleagues was the most important part to ultimately resolving it in a successful way.

She was everything. She was the ball game. I mean, despite everything else, majorities and all of it, it came down to one senator who on health care, for example, was the other in another place.

Yeah, I mean, and that is the thing with Susan Collins, right? It’s impossible to make an ideological or a partisan argument against her, because 10 minutes before, she is on the other side of something that is significant. The thing that she responds to is information, and what we saw in the speech that she ultimately provided in justifying her support for Judge Kavanaugh was something you rarely see in Washington these days. It was something that was not only well thought out and well articulated but researched to the hilt, going back to the origins of confirmations, of legal analysis of how we ultimately rely on court decisions to affect our everyday lives. There was no aspect of this decision that she hadn’t considered before she came to it. And so when that was done, when she presented that, most Republicans were just floored. They hadn’t heard a speech that was as fulfilling and as complete in defense of a nominee as that one. And I think McConnell viewed it as something that he just kind of thought was going to happen, because that is the way she always made her decisions.

Didn’t always have to give a full speech to justify them, but that's how she processed things, and so it wasn’t as much of a surprise, I think, to him, although he was delighted, as it was to a lot of their colleagues, who were just floored by the level of specificity in her decision making.

…During the Obama years, when McConnell is the minority leader, what's his strategy on judicial nominations? What was he doing then? We talked a little bit later, when he was in the majority. But as minority leader, what tools did he have, and what was he doing?

Well, it’s really important to follow the escalation of judicial nominations. We mentioned Bork. Obviously Thomas is a big piece of that. An equally large piece of this puzzle was the nomination of Miguel Estrada in 2002 to the D.C. Circuit Court of Appeals, which became the first time that a nominee was filibustered. And what that did is basically draw political lines in a way that amplified even the ideological lines, that this wasn’t somebody I necessarily even disagree with in their view of the law, but they're a Republican, and I'm going to filibuster them.

And there were some memos that were leaked that indicated that Democrats just simply could not handle having the first Hispanic nominee to the U.S. Circuit come from a Republican president. Whether that’s true or not, it certainly was a partisan debate, and it set off a chain of events that escalated the judicial fight to the point where Harry Reid ultimately deployed the nuclear option.

What McConnell had done, which is what he had done for an awful lot of nominees, both judicial and otherwise, is control the clock. You don’t have a lot of tools when you're in the minority. But one thing you can do is you can either expedite the clock and allow people to be processed very quickly, or you can slow things down. And if you slow things down, there creates a number of procedural barriers that you have to cross in order to get somebody confirmed.

And there was no question that, after what happened to Miguel Estrada and what had happened to a number of Bush nominees, that he was not going to be accommodating in allowing President Obama to use all of his unfilled vacancies to rush a bunch of liberal jurists into those courts. And ultimately, what that led to was Sen. Reid’s decision to deploy the nuclear option, a point, I will add again, where McConnell’s speech that day was, “You are going to regret this, and I think you're going to regret it much sooner than you think.”

…My last question is to go to the moment of the Kavanaugh confirmation. We started by talking about Bork; that becomes the Kennedy seat; this becomes the Kavanaugh seat. And you talked about the long game, and we talked about his response after Bork. So, pulling all of that together and thinking about that, how important is that moment of the Kavanaugh confirmation to leader McConnell, to his legacy, to what he set out all those years before?

I think his decisions in the wake of the death of Justice Scalia, the ultimate confirmation of Justice Gorsuch and then the confirmation of Justice Kavanaugh, are nothing short of a Mount Rushmore moment for conservatives. Those are the kinds of things that change this country, that turn the judiciary from a center-right judiciary from what could have been not only center left but a far-left judiciary. You think about the big things that you can do as a leader in the United States Senate. Maybe among the biggest is tax reform. Well, if you look at the last one before this, it was less than a Congress later that they changed taxes again. There is only really one thing that you can do that is absolutely indelible and completely permanent, and that is change the judiciary. Now, will it change eventually? Sure, but it’s going to take at least two generations to change. And McConnell knows that from a legacy point of view, from a view of center-right America, this is the most important thing you can do.

McConnell’s revenge.

It’s just a, I don’t even think of it as revenge so much as he just, he has got a way of withholding all of the energy and all of the chits and all of the temptations that all of his colleagues fall for to exert and use their political capital. He reserves it all. And the only time he uses it is when it makes absolutely maximum impact. And there is just no better example of that than the last two years of judicial confirmation battles.