How Joe Biden's deal with Mitch McConnell to seat an anti-abortion judge in Kentucky crashed and burned

LOUISVILLE, Ky. — The timing couldn't have been worse.

America was holding its breath for the U.S. Supreme Court to decide whether it would strike down the constitutional right to an abortion — an outcome that seemed preordained after a leaked draft opinion in May.

But President Joe Biden was ready to make a deal — or what Senate Minority Leader Mitch McConnell would later call “a personal friendship gesture.”

Dragged down by dismal approval ratings and facing midterms elections that seemed destined to hand Republicans control of Congress, Biden agreed to nominate the senator's choice for federal district judge in Kentucky — a candidate the Republican leader had been trying to get on the bench since 2020.

His name was Stephen Chad Meredith — a conservative, Republican Federalist Society member who had fought to strike down abortion access while serving as counsel for Republican Gov. Matt Bevin of Kentucky.

The Biden White House was set to unveil the nomination on June 24 ― until, that is, the U.S. Supreme Court chose that very same morning to issue its monumental ruling striking down Roe v. Wade.

When The Courier Journal broke the story of Meredith's intended nomination the next week, incensed Democrats and progressives saw it as a betrayal by the same president who had promised to do everything in his power to protect women's right to abortion.

The story of Meredith's improbable nomination is a tale of back-channel agreements and political maneuvering that nearly elevated an unlikely candidate to federal judge before miscalculations, bad timing and public scrutiny brought it crashing down.

Here's how it nearly came to be:

Late winter/early spring 2022: Mitch McConnell makes an overture

For more than two years, McConnell had been trying to get Meredith on the bench. Young, bright and with an established Federalist Society pedigree, Meredith was tailor-made for McConnell's ambition to pack the nation's courts with as many conservative judges as possible.

But his attempt to get Meredith nominated for federal judge came to a halt under President Trump after Meredith's ties to controversial pardons issued by departing Republican Gov. Matt Bevin prompted the White House to shelve his application.

But now with Biden in the White House, McConnell saw another opportunity. The two had forged a relationship in the Senate that spanned four decades and forged deals many times.

So, the nation's most powerful Republican reached out to White House Chief of Staff Ron Klain sometime in early 2022, and asked about the possibility of appointing Meredith to the federal bench, an adviser for McConnell told USA TODAY, requesting anonymity because he wasn't authorized to speak publicly.

"He just asked him, if the president would do this," the adviser told USA TODAY.

Related:McConnell blames Biden for Kentucky's empty US Attorney seats. The problem is closer to home

McConnell never spoke to Biden directly about Meredith's nomination, nor did he offer a specific trade with the White House in exchange, the adviser said. But over the years, the two men had made requests of each other before with the understanding a favor might one day be asked for in return, the adviser acknowledged.

The White House isn't commenting on what it might have expected in return. Klain didn't respond to requests for interviews.

But Biden signed off on McConnell's request. Eventually, "it came back that they were willing to do this," the McConnell adviser said.

Sen. Rand Paul told The Courier Journal he first learned of the potential Meredith nomination in February or early March, when the FBI contacted him as part of Meredith's background check.

It came as a total surprise to Paul, he said, prompting him to reach out to McConnell's office to see what was going on.

"We made inquiries and said, 'well, shouldn't we have a discussion about that?'" Paul said. "And we really never heard back from the other side."

A McConnell adviser has disputed Paul's account, asserting staff members for McConnell and Paul discussed Meredith’s nomination repeatedly for months.

June 22: A Kentucky judge quietly steps down

Around the same time McConnell approached Klain, he also reached out to an Eastern Kentucky federal judge he knew well ― U.S. District Judge Karen K. Caldwell ― asking her if she would be willing to accept senior status to open up a federal judiciary seat.

Long before she was named a district court judge in Eastern Kentucky, Caldwell has been a rock-ribbed Republican and a friend of McConnell.

In fact, the two had once dated.

She served as assistant U.S. attorney for the Eastern District of Kentucky from 1987 to 1990 when McConnell recommended her for U.S. attorney for the same district, leading to her appointment by President George H.W. Bush in 1991.

In 2001, she was nominated by President George W. Bush and confirmed as a U.S. District Court judge for Kentucky's Eastern District, a position she held the next two decades.

But on June 22, Caldwell quietly submitted her notification that she would take senior status, vacating her seat at a time to be determined. It wasn't posted on the future judicial vacancies site until July 1.

The posted notification created the opening needed for the Meredith nomination.

She has consistently declined to respond to questions for comment on the timing of her decision.

In years past, McConnell has come under scrutiny for encouraging judges on the brink of retirement to step down during a Republican president's tenure. The GOP leader's adviser said Caldwell indicated she wanted to take senior status but "wasn't going to give Biden a free shot at appointing someone."

June 23: A 4:16 p.m. email notice

One day after Caldwell's notice to step down, an email landed in Kentucky Gov. Andy Beshear's office with a startling announcement.

Sent at 4:16 p.m. Eastern by White House aide Kathleen M. Marshall — a former lieutenant governor in Nevada who joined the White House last August as senior adviser to governors in the Office of Intergovernmental Affairs — it stated: "To be nominated tomorrow: … Stephen Chad Meredith: candidate for the United States District Court for the Eastern District of Kentucky."

Beshear was livid.

"If the president makes that nomination, it is indefensible," he later told the press after The Courier Journal disclosed the nomination.

As deputy counsel to former Republican Gov. Bevin and then solicitor general for Republican Attorney General Daniel Cameron, Meredith had fought to defend laws and administration actions that restricted abortion access in Kentucky.

As the top appellate lawyer for Cameron, Meredith also successfully defended a state law in the Kentucky Supreme Court that stripped Beshear of his emergency power to implement COVID-19 restrictions.

And perhaps most controversially within Kentucky, Meredith was one of the staff attorneys involved in Bevin's controversial pardons and commutations at the end of the governor's term in 2019 that resulted in a federal investigation and several re-convictions.

Meredith's attorney, Brandon Marshall has said he had "no meaningful involvement" in any of Bevin's most controversial pardons.

Moreover, the McConnell adviser said Biden's willingness to nominate Meredith was a sign he had received a "clean bill of health" from the FBI background check.

"I've got to think the bar would have been extra high," the adviser said. "They probably would have loved to have come to us and say look, 'This pardon thing … we're uncomfortable with it.' But they didn't do that."

June 24: Roe v. Wade gets overturned

On the same day the White House said it would make Meredith's nomination public, the U.S. Supreme Court came out with its ruling that turned the country upside down.

At 10:10 a.m., the court in a 5-4 ruling overturned the landmark Roe v. Wade decision and voided the constitutional right to abortion.

The ruling enacted Kentucky's trigger law, essentially ending access to abortion in the commonwealth at the time.

And it launched a nationwide series of demonstrations and lawsuits by those hoping to preserve abortion rights.

At 12:37 p.m., Biden addressed the nation, condemning the ruling, which he called "the culmination of a deliberate effort over decades to upset the balance of our law."

And he promised: "I will do all in my power to protect a woman’s right in states where they will face the consequences of today’s decision."

Yet, that same afternoon, U.S. Rep. John Yarmuth, D-Louisville, said a White House official directly informed him that Biden was going to nominate Meredith for federal judge — despite the vehement opposition of the Democratic chairman of the House Budget.

The McConnell adviser said if the Dobbs ruling had instead been announced a few days later on the last day of the Supreme Court's term, Meredith's name likely would have been on the list of judicial nominees.

From there the timeline on confirmation would have depended on a number of scenarios that McConnell was anticipating, including a "lame duck" vote if Republicans retook the Senate during the 2022 midterms.

"My guess is Chad would have sat on a list for a very long time," the adviser said. "… he could have been a high-value hostage."

June 29: Chad Meredith's proposed nomination becomes public

Courier Journal reporters first learned of Meredith's nomination June 23, shortly after the White House email was sent to Beshear's office.

But it took several days of reporting to confirm the contents to the point where the newsroom felt it could publish.

At 5:32 p.m. June 29, The Courier Journal broke the story, publishing the first account of Biden's plan to nominate Meredith, and quoting Yarmuth's belief that it must have been part of a deal with McConnell to free up the confirmation of presidential nominees in the Senate.

Meredith and spokespeople for Beshear, McConnell and the White House continued to decline comment for the story.

But the news lit up social media, with left-leaning followers expressing disbelief and outrage (along with much harsher sentiments) that Biden would cut a deal with McConnell, the Republican they blame in large part for Roe's downfall.

June 30: The backlash begins

Yarmuth again sounded off against the potential nomination Thursday morning, telling The Courier Journal he had expressed his opposition to the White House in the strongest possible terms and calling it a "huge mistake."

He was soon followed by a bevy of furious Kentucky Democrats.

"The president is making a deal with the devil and once again, the people of Kentucky are crushed in the process," Democratic U.S. Senate candidate Charles Booker tweeted. "This is some bulls---."

The Alliance for Justice, a progressive judicial advocacy group, lambasted the choice. President Rakim H.D. Brooks said it was "completely unacceptable for Democrats to even consider confirming an anti-abortion judge to a lifetime appointment, especially in the wake of last week’s devastating news on Roe. People are going to die because of a lack of abortion access."

Monday, July 11: Senate Democrats resist nomination

With the White House refusing to comment on the Meredith nomination ― and Gov. Beshear continued venting his frustration that he had not been told that the Meredith nomination plan was being rescinded ― Democratic senators sounded off against the pick.

Sen. Dick Durbin, the chairman of the Senate Judiciary committee, said not only would he oppose Meredith's nomination on the merits, but the White House had not answered his questions on why Biden was pushing it in the first place.

“What's in it for us? They didn't give a specific answer," Durbin told reporters.

Nearly a dozen Democratic senators spoke out against such a nomination, with Sen. Sherrod Brown, D-Ohio, saying "no one that's hostile to abortion to women's health in choice should be nominated."

The White House stayed silent.

“We make it a point here to not comment on any vacancy, whether it is on the executive branch or the judicial branch, especially those that the nomination has not been made yet,” White House Press Secretary Karine Jean-Pierre said.

July 15: Meredith's nomination goes kerplunk

Battered day after day on the plan to nominate Meredith, it was an unlikely ally who gave the White House a way out ― Sen. Rand Paul.

Peeved that McConnell had failed to talk with him about the judge pick, Paul told the White House he would not return a "blue slip" on Meredith. "Therefore, the White House will not nominate Mr. Meredith,” Andrew Bates, White House deputy press secretary, said.

Traditionally, home-state senators return what's known as a "blue slip" to indicate support for federal nominees for district judges.

Republicans abandoned the "blue slip" practice for appeals court judges during the Trump administration but kept it for district court judges. Democrats have kept the same practice.

McConnell said he was "very surprised" that Kentucky's junior senator would torpedo an opportunity to land a lifetime appointment for a conservative judge in the state under a Democratic president.

The nomination was dead.

Monday, July 18: Paul blames McConnell for failure of 'secret deal'

After a weekend of silence on the matter, Paul on Monday publicly blamed McConnell for "tanking" the Meredith nomination by not having the "courtesy" to include him.

"I support Chad Meredith and supported him when he was considered for a different position. I think he would make a good judge," Paul told The Courier Journal and USA TODAY in a written statement. "Unfortunately, instead of communicating and lining up support for him, Senator McConnell chose to cut a secret deal with the White House that fell apart."

A McConnell advisor countered that Paul had done the White House "a huge favor."

"I suspect the White House is relieved," the adviser said. "I suspect Dick Durbin is relieved; and I suspect that the political people in the Biden team are relieved that Rand Paul blew this up."

Aug. 12: Wounds not healed

Nearly a month after the nomination, buoyed by strong job growth and the recent passage of the $739 billion Inflation Reduction Act, Biden appears to have put his misstep behind him.

Rand Paul has not. In an interview last week, Paul told The Courier Journal work needs to be done to patch up his relationship with McConnell.

"I think it is going to require some repair," Paul said of his frayed relationship with McConnell over the nomination. "And there needs to be more conversations."

And it's McConnell who needs to make the first move, he said, describing himself as a "useful whipping boy for everybody to just say it was my fault" Meredith's nomination fell through.

"He's the one that made the deal without talking to anybody. He needs to pick up the phone, and we need to start a conversation again. Because there's going to be more judge positions that come open, and there just needs to be a discussion."

Reach reporter Joe Sonka at jsonka@courierjournal.com and follow him on Twitter at @joesonka. Support strong local journalism by subscribing today at the top of this page.

This article originally appeared on Louisville Courier Journal: Biden Mcconnell Deal: the Anti-abortion judge appointee that wasn't