Skip to main content

Features

It’s Kavanaugh

President Donald Trump picks another Scalia-like conservative judge, this time to fill a swing seat on the Supreme Court

It’s Kavanaugh

Trump announces Brett Kavanaugh as his Supreme Court nominee, in the East Room of the White House on Tuesday night. (Evan Vucci/AP)

In a dramatic prime-time reveal that interrupted shows like ABC’s The Bachelorette, President Donald Trump announced his second nominee for the U.S. Supreme Court: U.S. Circuit Judge Brett Kavanaugh, who appeared through a door in the East Room of the White House with his wife Ashley and two daughters. 

A solidly conservative judge with extensive experience on the bench, Kavanaugh, 53, faces a much fiercer political battle for confirmation than Trump’s first nominee, Justice Neil Gorsuch. That’s because Kavanaugh would fill the seat of swing vote (and his onetime boss) Justice Anthony Kennedy, for whom he clerked in the 1990s. Speculation simmered that Kennedy wanted Kavanaugh to replace him, and with a July 31 date for his retirement, Kennedy could have theoretically rescinded his retirement if he didn’t get the pick he wanted. 

Liberal groups sounded the alarm that any Trump nominee for Kennedy’s seat would threaten gay rights and abortion, two issues where Kennedy sided with liberal judges. Conservative groups like the Susan B. Anthony List and the Judicial Crisis Network began campaigns for Kavanaugh in states with battleground Senate seats. 

Republicans have a thin majority in the Senate, so the confirmation is likely but, like The Bachelorette, the process in the coming weeks will be filled with drama and suspense. Kavanaugh, a veteran of the D.C. world, used his prime-time television spot to begin his political wooing. To reassure conservatives, he described his judicial philosophy: to “interpret the law, not make the law.” He said the Constitution should be interpreted “as written,” and he name-checked the separation of powers. 

To reach out to liberals, he name-dropped Justice Elena Kagan, saying he was grateful that she hired him when she was the dean of Harvard Law School. He also emphasized the diverse backgrounds of his clerks, the majority of whom have been women (Kavanaugh would be the 108th white male justice out of 114 Supreme Court justices in American history). 

He emphasized the importance of his Catholic faith. He talked about his mom’s work at a largely African-American high school in Washington, and the impact of her decision to go to law school when he was a 10-year-old. She eventually became a state judge.

“The president introduced me as Judge Kavanaugh,” he said. “But to me that title will always belong to my mom.” 

Kavanaugh worked on the legal team for the Starr Report, laying out a strategy for impeaching President Bill Clinton. Later he joined the George W. Bush White House before Bush elevated him to the U.S. Court of Appeals for the District of Columbia Circuit, which handles many challenges to federal regulations. He (like Gorsuch) is a critic of the Chevron doctrine, where judges defer to federal agencies’ regulatory determinations. 

At the announcement, Trump was subdued and followed prepared remarks. He made the Supreme Court a significant piece of his presidential campaign in 2016, releasing a list of 21 judges that he considered a “guide” for his nominations. Kavanaugh was not on the list then, but Trump added him along with several others a few months after the confirmation of Justice Neil Gorsuch. 

Kavanaugh fits the list’s Scalia-esque prototype: He’s a conservative, originalist judge with enough of a record to reassure conservatives but without an obvious ruling that would repel moderate Republicans and red state Democrats. He and Gorsuch are both George W. Bush nominees to appellate courts, so they like Chief Justice John Roberts and Justice Samuel Alito fit a mainstream conservative mold. On Tuesday night Kavanaugh had praise from Alliance Defending Freedom attorneys and pro-life activists.

In the days leading up to Trump’s announcement, Kavanaugh faced sporadic criticism from the right. Some criticism had to do with whether he provided the “tax” argument idea for Chief Justice Roberts to uphold Obamacare (Kavanaugh did not rule to uphold Obamacare, but he presented the idea of the penalty as a tax in a proceeding). Scalia-mold legal conservatives like Ed Whelan leaped to his defense.

“If you are on the right and you are worried about this dude, you're insane,” tweeted Harvard Law’s Ian Samuel, who argued a case before Kavanaugh. “He is your dream pick.” 

Focus on the Family founder James Dobson told The Washington Post that he was pleased with Trump’s Supreme Court nominees overall: “He has kept his promises. … I will vote for him again.” 

Some of the conservative criticism of Kavanaugh amounted to jockeying for other candidates like 7th Circuit Judge Amy Coney Barrett. Barrett, who joined the federal bench only a few months ago, had recently tussled with Senate Democrats. Her confirmation process would have been thornier. 

On Monday night, even as social conservatives sang Kavanaugh’s praises, some expressed disappointment that Trump hadn’t selected Barrett. Marjorie Dannenfelser, president of the Susan B. Anthony List, called Barrett her group’s “prototype.” 

“Amy Coney Barrett is a superstar. I would have been very, very pleased to see her,” said Princeton Law professor Robert George. “But she’s only 46 years old. … I’m hoping she’ll be next.” 

The big question for social conservatives: With Kavanaugh, would the court have five votes to undo Roe v. Wade? Like Roberts and Gorsuch, Kavanaugh has said he considers Roe binding precedent. It’s not clear what that means for his future decisions. After all, Kagan said in her confirmation hearings that there was no constitutional right to gay marriage, and then once on the court she voted in Obergefell v. Hodges that there was such a right.

Emily Belz

Emily Belz

Emily reports for WORLD Magazine from New York City. Follow Emily on Twitter @emlybelz.

Comments

  • AlanE
    Posted: Tue, 07/10/2018 10:53 am

    In 2016, I was deeply skeptical of Trump's promise to appoint a conservative justice, an originalist, to the Supreme Court. He fulfilled that promise. Although this second appointment has yet to be approved by the Senate, it appears he has now done it twice--something that never appeared in his campaign promises.

    There are so many ways in which I wish Trump was somebody other than who he is. And, I most definitely would not want Trump tutoring one of my sons, if any of them had political aspirations. I continue to see nothing of the marks of a man redeemed by grace, most especially even the rawest vestiges of humility, in Donald Trump.

    I will say this in his behalf, though. He has followed through on campaign promises (including a couple I wish he hadn't) better than any presidential candidate in living memory. He has taken on the press over the issues of their biases, double standards, and, frequently, dishonesty more effectively than any politician I have ever seen. It is, in an odd way, very refreshing to have a man in office who seems wholly disinclined to grovel for the approval of the media.

    In short, there are many attributes that Donald Trump has that I wish were found more regularly and more vigorously in politicians who do openly profess a relationship with Christ. But I still cannot bring myself to vote for a person who is so brazenly contemptuous of so many of his fellow men, and one who is so glibly unencumbered by concerns of personal piety.

    Such are the days in which we live. Surely we as Christians do live between two worlds.

  • D King
    Posted: Tue, 07/10/2018 11:05 am

    You said it better than I could!

  • TWH
    Posted: Tue, 07/10/2018 12:32 pm

    Alan E - I agree with every word you wrote. How often does that happen these days?!

  • Big Jim
    Posted: Tue, 07/10/2018 08:39 pm

    AlanE very eloquent and well stated, I agree with everything said with the exception that I did vote for Trump and this appointment is exactly the reason why. I couldn't imagine the prospect of Hillary Clinton making this (and the last) Supreme Court appointment. Think two more Elena Kagans on the Court.

  • Okie from Hollis
    Posted: Tue, 07/10/2018 11:11 am

    I suspect (and hope) that Trump's plan is to nominate Amy Barret for his 3rd pick, after the 2018 elections when there will be a few more Republican senators elected.  In that scenario her confirmation would be practically assured and the inevitable and viscious attacks against her faith and lifestyle would be ineffectual.

  • West Coast Gramma's picture
    West Coast Gramma
    Posted: Tue, 07/10/2018 12:05 pm

    To AlanE: YES!! Very well stated. 

  • Xion's picture
    Xion
    Posted: Tue, 07/10/2018 12:06 pm

    Why does ideology ever enter into the process of confirming judges?  Justice Elena Kagan explained this in one of her essays.  She said that the Constitution is a barrier to progressivism and it is her duty to find a way around the law.  It is this judicial activism to legislate a political agenda that has corrupted the legal process.  A judge who lets the law speak for itself should be less prone to political corruption.  Unfortunately it is corruption that activist Senators want and they will say or do anything to destroy honest interpreters of the law.  It is astonishing that they can get away with it, but their constituents keep voting the scoundrels back into office.

  • Mary Pray
    Posted: Tue, 07/10/2018 07:33 pm

    Donald Trump never called himself a politician. He sees himself as a business man. And right now he is trying to straighten out the chaos caused by so many years of socialist politicians, Democrat and Republican. I voted for him the first time, hesitantly, because of my pro-life convictions. I will vote for him again because he is saving lives!

  • Joe M
    Posted: Fri, 07/13/2018 01:00 am

    "In a dramatic prime-time reveal that interrupted shows like ABC’s The Bachelorette..." That about says it all. If politics gets such center stage in a culture that watches ABC, Christians will lose. Trump is a blip. Millenials will paper over all his moves.

  • Graced
    Posted: Fri, 07/13/2018 11:53 am

    I am concerned that conservatives/Christians aren't talking about his views on the president as stated in the law review article he wrote. This could be deeply troubling and long-lasting if this is entrenched in our judicial rulings.