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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Kennedy wanted Kavanaugh to replace him, and with a July 31 date for his retirement, Kennedy could have theoretically rescinded his retirement if he didn’t get the pick he wanted.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.