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Who Owns Kavanaugh #1: The Justice & The Replacement
Part One of this five-part series examines how Brett Kavanaugh's Supreme Court seat came to be open, and why he was chosen to fill it.
Nine justices on the Supreme Court, nine players on a baseball team. Just as you don’t need all nine players to throw the World Series, so you don’t need all nine justices to sway key SCOTUS decisions.
In this five-part series, we will show, through careful examination of his financial statements and his Senate testimony, how Brett Kavanaugh is compromised; how he perjured himself during the nomination hearings; and how dirty operatives weaponized a credible sexual assault claim, intentionally triggering millions of women, to divert attention from the money trail and ensure his nomination.
This series is written by Greg Olear in collaboration with LB (@LincolnsBible).
IT WAS A CRISP MAY DAY when Brett Kavanaugh put on his sky-blue silk tie and faced the biggest moment of his career. The last of the city’s cherry blossoms had already fluttered to their end, signaling to children and parents that the school year was almost over, and summer would soon scratch at the screen door. As he stepped out of his handsome new Chevy Chase home and into his future—with his parents, young wife, and new baby at his side—the world around Brett was singing that illusive message of “HOPE.”
But when we got our chance to see him in his spring tie, he was visibly uncomfortable. Maybe it was the weight of the Senate chamber. Maybe it was the complicated thicket of questions that lay ahead. After all, if Brett was going to make it through this confirmation hearing, perjury might be required.
Or maybe it was the man speaking—the charming former supervisor whom Brett had asked to vouch for his character and experience.
When the Communist Romanian-born Ninth Circuit Judge Alex Kozinski spoke in his thick Dracula accent about Brett’s passionate creativity with the law, that odd look of severe constipation, which Tucker Carlson has managed to perfect, took control of Brett’s face: lips pursed, brow furrowed, eyes darting.
Perhaps Kozinski’s words triggered an uncomfortable memory from Brett’s time working for Ken Starr on President Clinton’s impeachment, when Brett insisted on using Monica Lewinsky’s grand jury testimony to cross the super-partisan gutter for questioning Slick Willie under oath:
If Monica Lewinsky says that you had phone sex with her on approximately 15 occasions, would she be lying?
If Monica Lewinsky says that you ejaculated into her mouth on two occasions in the Oval Office area, would she be lying?
If Monica Lewinsky says that you masturbated into a trash can in your secretary’s office, would she be lying?
Or, he could have been remembering the Bush torture memos, of which he took part. As far as he knew, no one outside that Bush Office of Legal Counsel (OLC) could tie him to those documents. But these Dem Senators were sure to question him about it, including the ever-intimidating Ted Kennedy.
Or, the pursed lips and furrowed brow could have been about the sex. Not necessarily the sexual harassment that pervaded Kozinski’s office while Brett was working there. After all, at the time, no one believed women—or cared if they did; Clarence Thomas’ confirmation proved that. But Kozinski had his own website, with a personal stash of pornographic images charitably described as “unusual.” That story would not break for two more years, but, given dirty-minded Kozinski’s penchant for showing the contents of said porn stash to his female clerks and his externs, the Senators might have found out about it and assumed that, since he spent a whole year in that office as a law clerk, Brett must have been aware. They would certainly assume that he was on Kozinski’s “Easy Rider Gag List,” and thus in receipt of the crude, misogynistic jokes the judge frequently emailed out. Maybe asking Kozinski to introduce him was a bad idea?
So, Brett pursed, and Brett furrowed, and Brett lied his way through his Senate hearing. In the end, the worried constipation was all for naught. It worked out for Brett. Hope won on that crisp May day. Brett Kavanaugh would be confirmed as a judge to the U.S. Court of Appeals for the District of Columbia Circuit—a stepping stone to highest court in the land.
The year was 2006.
I. The Justice
On June 27, 2018, Associate Justice Anthony Kennedy announced his retirement from the Supreme Court. Although Kennedy was no spring chicken—he was almost 82—the announcement was nevertheless a surprise. No one saw this coming—no one but the gray eminences working in the shadows to make it happen.
The out-of-the-blue retirement threatened the precarious balance of the Court. For a generation, the Reagan appointee was the “swing vote,” the wild card whose opinion ultimately prevailed in close decisions. Kennedy’s replacement by a more dependable conservative would skew the Court to the right for the foreseeable future—perhaps for the next half century.
Donald John Trump had already nominated a solid conservative, Neil Gorsuch, to fill the vacancy left by the death of Antonin Scalia in February of 2016 (an opening that should have gone to Barack Obama’s nominee, Merrick Garland, if Mitch McConnell had done his Constitutional duty and allowed the Senate to vote on Garland’s confirmation). Just 18 months into his presidency, Trump was poised to name his second Supreme Court Justice. And with liberal stalwart Ruth Bader Ginsburg two years older than Kennedy, the likelihood was that Trump would name at least one more before his term expired.
While Kennedy’s retirement caught Washington off guard, it was not a surprise to Trump. On the contrary, according to reports by Vanity Fair and the New York Times, Trump’s people had been engaged for months in a stealth campaign to convince Kennedy to retire.
Why did Trump focus his efforts on Kennedy, rather than 68-year old Sam Alito or 70-year-old Clarence Thomas? What was it about Kennedy that made him a soft touch? As it turns out, the president and Anthony Kennedy were “connected.”
As the son of a first-generation mob front man, and a mob money launderer himself, Donald Trump was intimately acquainted with La Cosa Nostra. Trump could not have been unaware of the fact that Anthony Kennedy’s father, Anthony J. Kennedy, was the private attorney for infamous California mob boss Arthur “Artie” Samish—“Gangster” Mickey Cohen’s “godfather.” That Cohen and Samish are not much remembered these days doesn’t make them any less venal, or the elder Kennedy’s involvement with them any less suspect. A political operator and fixer, Samish was basically the Roy Cohn of California. Anthony Kennedy took over his father’s law practice after the elder Kennedy passed away suddenly in 1963. While Samish technically “retired” as a lobbyist in 1959, after serving a three-year prison term for tax evasion (not mobster-y at all!), he lived until 1974, and was active throughout Ronald Reagan’s term as governor of California. In 1975, Reagan recommended Kennedy to President Gerald Ford for the vacancy at the U. S. Court of Appeals for the Ninth Circuit—where Alex Kozinski would later serve.
Does it skip a generation? Justice Kennedy’s son, Justin Kennedy, seems to have no qualms about cavorting with shady characters. Here’s a dude chummy enough with Trump to hang with him at the U.S. Open, as David Enrich reports in his book Dark Towers, and who happened to work in one of the shadiest divisions of the shadiest big bank on the planet—real estate at Deutsche Bank.
As it happens, a financial institution that happily handled Nazi plunder in the 30s and 40s is just as eager to transact business with mobsters, pedophiles, and despots in the here and now. As I explained in a piece this July:
Deutsche Bank is verfault. This is a rotten outfit that came to prominence as the bank of choice for Hitler and the Third Reich, and is now the BCCI for the 21st century. DB paid hefty fines for running “mirror trades” with Russia, to help move money out of that corrupt country and into the Western banking system—money laundering, in other words. It paid a record $2.5 billion fine for its role in the Libor scandal, when it was caught manipulating interest rates. It was fined for doing business with countries on the US sanctions list. The bank agreed to a $7.2 billion settlement for its active role in causing the 2008 financial crisis. And just this week, Deutsche was hit with yet another fine, this one of $150 million, for turning a blind eye to the numerous suspicious transactions in the accounts of its late client, the late convicted pedophile Jeffrey Epstein. That’s almost $11 billion in fines alone in the last 12 years, almost a billion a year, for having no scruples in its business dealings.
Heck, even Rick in Casablanca knew Deutsche Bank was bad news:
Do you know who I am?
I do. You’re lucky the bar’s open to you.
No conversation about Deutsche Bank is complete without noting that they were the only global bank willing to loan money to Donald Trump and his deadbeat real estate company after a slew of bankruptcies and long history of shall we say less than pristine business practices. No other bank would touch him. This question was posed by Douglas Letter, the House general counsel, to DB representatives in one of the hearings about Trump’s finances: “Why would you give money to Trump when no other bank would touch him?”
It may be simply, as Enrich suggests in Dark Towers, that the swashbucklers at DB needed big, stupid, irresponsible real estate loans to slice and dice and create the mortgage-backed securities they sold, and Donald John Trump was always willing to take on big, stupid, irresponsible real estate loans. It may be that dealing with Trump was a necessary condition of maintaining the business of seedier clients with much deeper pockets. Whatever the reason, Trump was an important client at DB, whose real estate division was headed by Justice Kennedy’s son—a guy he’d known socially for years, as they’d each cultivated the other.
And yes, this could all be a big coincidence—a function of rich and powerful families tending to cross-pollinate, as David Litt, an Obama speechwriter, opines in the Washington Post:
The existence of a personal connection between a conservative Supreme Court justice and a real estate billionaire turned president seems to shock some political observers. It shouldn’t. Of course the Trumps and Kennedys know each other: Both families belong to the most exclusive circle of America’s elite. This upper-upper crust has members from across the country, but it functions as a kind of a gated community, one in which personal and professional relationships inevitably intertwine.
“I doubt this is a matter of evil intentions,” Litt concludes. “More likely it is a matter of ignorance.”
Whether the motive was nefarious or just ignorant, the families were indisputably connected. Was there something illicit in Trump’s dealings with Justin Kennedy and Deutsche Bank? If so, did Trump use this as leverage over Justin Kennedy to coerce his father to step down from the Supreme Court?
In other words: Did Justice Kennedy retire because he didn’t want his son to “go through some things?”
II. The Replacement
After Justice Kennedy’s surprise resignation, the media began to report on likely replacements. The odds-on favorite appeared to be Amy Coney Barrett, 46, a federal appellate judge for the Seventh Circuit in Indiana. The former Notre Dame law professor was a woman, young, and as reliably conservative as they come. She would add much-needed diversity to the bench. (Two years later, in the midst of a global pandemic, the nation would become well acquainted with “Amy Covid Barrett,” when Mitch McConnell rammed her nomination through in the dying days of Trump’s presidency. One wonders if she would have been received more favorably in 2018.)
But Trump did not pick Barrett. Nor did he choose one of the four other women on his short list. Instead, after nominating Neil Gorsuch, a straight white man who had been raised Catholic and attended Georgetown Prep, Trump tapped...another straight white man who had been raised Catholic and attended Georgetown Prep: D.C. circuit judge Brett Kavanaugh.
While not completely out of left field, the pick was as surprising as Kennedy’s retirement had been. In 2016, when he was running for president, Trump circulated a short list of judges he promised to consider for the Supreme Court—a list given to him by the Federalist Society (more on that organization later). He did this to assuage the fears of his conservative base. Tellingly, Brett Kavanaugh’s name was not on that list. So why was he considered, and why was he picked?
Did Trump himself make the selection? Was it the brainchild of Don McGahn, the White House counsel, who was overseeing the nomination process? Chuck Grassley, the chair of the Senate Judiciary Committee, hinted at McGahn’s backroom importance in a statement to NPR, saying he “has considered him integral to the president’s record-breaking success on filling judicial vacancies,” eclipsing all previous White House Counsels in working “so well and so efficiently with the chairman’s office and the Senate Judiciary Committee on judges.”
Or did Kennedy himself make the call? Ruth Marcus, WaPo’s deputy editorial page editor, reported in her book Supreme Ambition that Kavanaugh was Justice Kennedy’s choice—that Kennedy would not retire unless Trump promised to nominate his chosen successor. If this is the case, how did Kennedy happen to know Brett Kavanaugh? From another of his former law clerks who ascended to the circuit court—Alex Kozinski.
By 2018, the extent of Kozinski’s depravity was out in the open. He maintained a personal website, http://alex.kozinski.com, with a secret but publicly accessible subdirectory that “included a photo of naked women on all fours painted to look like cows and a video of a half-dressed man cavorting with a sexually aroused farm animal,” as the L.A. Times reported in 2008. While there’s nothing illegal about that, the optics were not great—especially for a judge accused by more than a dozen women of sexually inappropriate behavior. Kozinski was subsequently sued for damages by the California attorney who discovered the website, Cyrus Sanai, who contended that
the Judicial Council, which evaluated his complaint, was aware that Kozinski viewed pornography from that website, and had used it “for his continued hazing and sexual harassment of his clerks” and secretly let him take his website off-line and “scrub the contents.”
At Kavanaugh’s 2006 confirmation hearing, Kozinski called him “my good friend.” Did his “good friend” Brett escape the “hazing” of clerks that Sanai alleges? Whatever happened in that clerkship, with Kozinski’s enthusiastic recommendation, Kavanaugh rose from his tutelage up to that of a Supreme Court Justice—one who would eventually recommend him as his own replacement.
However Justice Kennedy may have felt about him, Brett Kavanaugh was an unorthodox choice for SCOTUS. Judges, whether conservative or liberal in their approach to the law, tend to keep quiet about their politics. The idea is to present as impartial. But, like the female bodies painted as cows in jpegs on Kozinski’s secret porn hub, Kavanaugh was naked in his partisanship—an unabashed GOP operative. “The Forrest Gump of Republican politics,” one senator called him. (Well, sure—if Forrest Gump were as sinister as the man he was named for, Nathan Bedford Forrest.) Senator Chuck Schumer addressed this concern in his opening statement at Kavanaugh’s 2006 confirmation hearing:
[A]lthough Mr. Kavanaugh has held several important and influential positions in Government, they have been almost exclusively political. There is no doubt that, Mr. Kavanaugh, you are a highly successful young attorney and your academic credentials, as certainly outlined by the Chairman, are top notch. But your experience has been most notable, not so much for your blue chip credentials, but for the undeniably political nature of so many of your assignments. For much of your career your considerable talents have been enlisted in partisan and polarizing issues. In short, you have been the “go to” guy among young Republican lawyers appearing at the epicenter of so many high-profile controversial issues in your short career, and it is only natural that such a record would give many Senators pause, particularly those of us on this side of the aisle.
From the notorious Starr report, to the Florida recount, to the President's secrecy and privilege claims to post-9/11 legislative battles including the Victims Compensation Fund, to ideological judicial nomination fights, if there has been a partisan political fight that needed a very bright legal foot soldier in the last decade, Brett Kavanaugh was probably there. That kind of record is not dispositive, to be sure, but it feeds an impression of partisanship that is, to put it mildly, not ideal for a nominee to a critically important lifetime post as a neutral judge.
There’s a connective tissue in here—the beginnings of what we can see of Kavanaugh’s long history with dirty political ops. As Schumer pointed out, Kavanaugh worked with Kenneth Starr during Bill Clinton’s impeachment, insisting on the lurid line of questioning that set the no-holds-barred tone. Indeed, he was Bob Woodward’s source in Starr’s camp, which means that Kavanaugh has long experience leaking damaging information to maximize impact. “Control the narrative”—that’s the point of a dirty op.
Kavanaugh worked for George W. Bush—first with the campaign’s legal team doing the Florida recount, then for “torture memo” White House Counsel Alberto Gonzalez in the OLC, and finally as White House Staff Secretary, succeeding Harriet Miers (another unlikely nominee for SCOTUS). When Kavanaugh went into private practice, he worked at Kirkland & Ellis, the notorious Chicago-based law firm that represented Jeffrey Epstein. Here’s who also worked at Kirkland & Ellis: Robert Bork, Kenneth Starr, John Bolton, Alex Acosta, and, oh yes, Bill Barr. Plenty of perfectly fine attorneys work at that firm, but even so—that’s a veritable Murderer’s Row of shady kook-right awfulness. Heck, Barr even looks a bit like Babe Ruth.
Perhaps most significant, Brett Kavanaugh is a member in good standing of the conservative Federalist Society, described by the Daily Beast’s Jay Michaelson as “a large right-wing network that grooms conservative law students still in law school...links them together, mentors them, finds them jobs, and eventually places them in courts and in government. It’s like a large-scale fraternity, knitted together by ideological conformity.”
The longtime executive VP of the Federalist Society is one Leonard Leo, a Knight of Malta, and the most powerful Beltway lobbyist no one’s heard of. Leo shepherded the Supreme Court nominations of Samuel Alito, John Roberts, and Neil Gorsuch, and seventeen of the first 18 federal appeals court judges nominated by Trump. He was also involved with the stonewalling of Merrick Garland’s nomination in 2016.
The Federalist Society recruits and develops conservative judges, almost like a farm system in baseball. But another Leonard Leo joint, the Judicial Crisis Network—the JCN—is the PR operation that promotes and whitewashes them for positions in the court system. There is a lot of overlap between the two. Senator Sheldon Whitehouse gave an excellent primer on this during Amy Coney Barrett’s confirmation hearing:
A mindboggling amount of resources is invested in these shenanigans: money, personnel, legal research, planning, public relations—all to hijack the Judicial branch of government and perpetuate a government of minority (read: straight white Christian male) rule. Leo’s objective in installing all these judges is nothing less than to return the country to the Wild West days before FDR and the New Deal, as Michaelson explains in The Daily Beast:
The Federalist Society has mainstreamed ideas that were once considered intellectual outliers: that most of the New Deal and administrative state are unconstitutional, that corporations have free speech and free religion rights, that women and LGBT people are not “protected classes” under constitutional law, and that there is no right to privacy implied by the due process clause of the Constitution (i.e., banning abortion, contraception, and gay marriage are entirely constitutional). Two decades ago, hardly anyone in the legal academy took these ideas seriously. Now, they are litmus tests for conservative judges.
In other words, Leonard Leo is vehemently opposed to Social Security, Medicare/ Medicaid, gender equality, civil rights, LGBTQ rights, and privacy, but he’s fine with corporations being people. And Brett Kavanaugh was, and remains, his guy.
As usual, Leo got his way. On July 9, 2018, Trump nominated Kavanaugh to the Supreme Court, thrusting him into the spotlight. Already a circuit court judge, endorsed by Anthony Kennedy (for whom he once clerked) and George W. Bush (for whom he and his wife Ashley once worked), Kavanaugh should have sailed through the nomination process without much trouble—just as his fellow Georgetown Prep alumnus Gorsuch had done.
Instead, his nomination hearing became one of the most contentious in American history. As fate would have it, his financial statements and disclosures had more red flags than a Chairman Mao rally. And his old dirty-op buddies went to extraordinary lengths to make us look the other way.