President Trump announced his pick for retiring Justice Anthony Kennedy on Monday night and the selection came down to a handful of finalists. In the end, Brett Kavanaugh, a former Kennedy clerk and current judge on the DC Circuit court, was given the nod from the President.
The Associated Press reports on the Kavanaugh nomination:
President Donald Trump is nominating influential conservative Judge Brett Kavanaugh to the Supreme Court as he seeks to shift the nation’s highest court further to the right.
Trump chose the 53-year-old federal appellate judge for the seat opened up by the retirement of Justice Anthony Kennedy. Kavanaugh would be less receptive to abortion and gay rights than Kennedy was.
Kavanaugh is Trump’s second high court pick after Justice Neil Gorsuch. Kavanaugh and Gorsuch served as law clerks to Kennedy at the same time early in their legal careers.
Kavanaugh is a longtime fixture of the Republican legal establishment. He has been a judge on the federal appeals court in Washington since 2006. He also was a key aide to Kenneth Starr during his investigation of President Bill Clinton and worked in the White House during George W. Bush’s presidency.
There had been speculation that given Kavanaugh’s connection to the Bush family, Trump may decide to pass on him but those rumors didn’t pan out. In the end, it may well have been a nod to Justice Kennedy by picking one of his former clerks as a replacement.
By selecting Kavanaugh, Trump continued to tradition of graduates from Yale and Harvard dominating the court, a practice that has been criticized by some observers as leading to a very elite “insiders” club on the bench. David French, a writer for the conservative National Review, says Trump picked the wrong judge:
But, truth be told, Kavanaugh’s record isn’t the main reason for the flash of conservative regret. Give a judge a paper trail long enough, and he’ll decide cases that ignite controversy. No, the reason for the regret runs a bit deeper. Especially for America’s Christian conservatives, a potential Barrett nomination represented a chance for an important cultural moment — an opportunity for the best of young professional Christians to face the worst of progressive antireligion bias and prevail on the largest possible stage.
If “the dogma” could “live loudly” within her, as Sen. Dianne Feinstein (D-Calif.) famously told Barrett, who sits on the U.S. Court of Appeals for the 7th Circuit, at her confirmation hearing last year, and she could ascend to the Supreme Court, then she would quite possibly become the conservative folk-hero equivalent of Justice Ruth Bader Ginsburg. It’s not just that Barrett is qualified; she is. It’s that conservative Christians see her as qualified and a person they felt like they know. In many ways, her life story was their life story. They, too, belonged to communities of believers like People of Praise. They, too, went to schools like the University of Notre Dame.
Dana Milbank, a right-leaning columnist at the Washington Post, writes about his concerns over Kavanaugh’s conservative record:
Kavanaugh is a polarizing figure in the health-care debate. Among the things that distinguish him from the other finalists on Trump’s list is his expansive view of executive power — he argued that a president could decline to enforce a statute such as Obamacare even if a court upholds its constitutionality — and his dissent in a 2011 case in which others on his appellate court upheld the constitutionality of the Affordable Care Act.
Republicans are likely to bring Obamacare into the confirmation hearings, too. Some conservative groups opposed Kavanaugh because they think his dissent in the Obamacare case didn’t go far enough in declaring it unconstitutional.
In the long run, Kavanaugh could shape jurisprudence for decades on abortion, gay rights, voting rights, money in politics, guns, presidential authority and more. But his most immediate impact could be on health care.
The editorial board at the Chiacgo Tribune, a Republican leaning paper, praised the pick:
Nominating Kavanaugh to replace Kennedy will reaffirm approval of Trump among the president’s supporters and disapproval among his detractors — as did Trump’s 2017 nomination of Neil Gorsuch to fill the seat vacated by the death of Scalia.
The Tribune’s policy has been to favor candidates who have demonstrated their fitness on objective grounds. In 2010, we praised Elena Kagan, nominated by Barack Obama, as “a first-rate legal mind, a respected scholar and accomplished administrator.” In 2016, we admired Merrick Garland for amassing a “long and stellar record on the federal bench” that “has won nearly universal admiration.” We opposed Harriet Miers in 2005 because she appeared ill-prepared for the job.
All of us should evaluate Kavanaugh not on how he is likely to vote on abortion rights, the Second Amendment or affirmative action, but on more fundamental characteristics. Predicting how a judge will rule on any particular question is a fool’s errand: Ask conservatives who were shocked when Chief Justice John Roberts provided the deciding vote to uphold Obamacare.
For all the fuss happening over the prospect of Kavanaugh being a decisive vote in overturning Roe v. Wade, NBC News reports that his public statements and record on abortion matters is quite thin:
In his time on the bench, Kavanaugh has not written or commented on abortion in any great detail. But last October, he took part in a high-profile court fight involving a pregnant undocumented teenager who wanted to obtain an abortion.
The appeals court ruled that the teenager could temporarily leave government custody for an abortion procedure. In his dissent, Kavanaugh said the Trump administration conceded that the teen had a right to an abortion, but he argued that the court was wrong to conclude she had the right to “an immediate abortion on demand.”
He said delaying the procedure until she could be released to a U.S. sponsor would not impose an undue burden on the abortion right — a position that some conservative activists have since criticized as insufficiently hard-line. (Karen LeCraft Henderson, one of Kavanaugh’s more conservative colleagues, wrote in a separate dissent that the teenager had no right to an abortion at all because she was not a citizen.)
Regardless of where Kavanaugh comes down on these hot-button social issues, there is now no denying the Trump-impact on the Supreme Court. President Obama, during eight years, received two Supreme Court nominations. In a fraction of the time, President Trump has already picked the same amount. It’s conceivable that the number could be as high as four depending on whether Trump wins a second term.