President Trump nominated appeals court judge Brett Kavanaugh to the Supreme Court Monday night to replace the retiring Justice Anthony Kennedy, ending a days-long guessing game that began the moment Kennedy announced his retirement on June 27.
The four finalists – Kavanaugh and fellow appeals court judges Amy Coney Barrett, Thomas Hardiman and Raymond Kethledge – were drawn from a list of 25 names vetted by conservative groups.
A clue to Kavanaugh’s nomination emerged hours before the announcement when the D.C. Circuit Court of Appeals issued a written opinion in which the judge sided with the majority. The D.C. court does not typically issue opinions on Mondays except in response to emergency petitions, suggesting that the case had to be disposed of before Kavanaugh was nominated for the high court.
Kavanaugh, a former law clerk to Kennedy in 1993, was elevated to the powerful federal appeals court in the District of Columbia by President George W. Bush, under whom he had served as a White House lawyer and staff secretary. Kavanaugh, 53, also won the confidence of key players in the Bush circle such as strategist Karl Rove.
This, however, had risked being something of a double-edged sword for Kavanaugh in the Trump era, raising concerns among some Trump supporters that he was too much of a D.C. insider and too closely associated with the Bush circle.
The Bush connections also harmed him with Democrats at the time of his initial nomination, who delayed his confirmation. But despite the criticism, he wore his support for Bush on his sleeve. It remains to be seen if those ties will complicate his confirmation process now — both with Democrats and Trump’s base.
Trump, though, may have been swayed in part because of Kavanaugh’s record of being a reliable conservative on the court – and reining in dozens of administrative decisions of the Obama White House. There are some question marks for conservatives, particularly an ObamaCare ruling that signaled his implicit support of the law.
In a 2011 case, Kavanaugh acknowledged in his dissent that the Affordable Care Act’s “individual mandate provision” could fit “comfortably within Congress’ Taxing Clause power.” His detractors say that language helped provide the road map for the Supreme Court to uphold the mandate a year later.
However, supporters of Kavanaugh have pushed back against that argument. Justin Walker, a former Kavanaugh clerk, argued that the judge’s “hypothetical discussion” about the Taxing Clause has been misinterpreted and is actually “a road map to the conclusion reached by the dissenters—that the individual mandate is unconstitutional under the Taxing Clause.”
Further, it’s also unclear how Kavanaugh would rule on abortion, as he has never directly confronted the issue as a judge. Last year, Kavanaugh dissented from a decision allowing an illegal immigrant to receive an abortion, but pro-life conservatives have criticized him for not going far enough. Specifically, they have expressed concern about language where Kavanaugh wrote “the unlawful immigrant minor is assumed to have a right under precedent to an abortion.”
Despite potential conservative grumbling, the White House is gearing up for a combative confirmation process. The administration announced earlier Monday that former Sen. Jon Kyl of Arizona would guide the nominee through the Senate confirmation process. Before retiring in 2013, Kyl was a member of the Senate Judiciary Committee, which will be the first to consider the nomination. He now works for the Washington-based lobbying firm Covington & Burling. The White House hopes Kyl’s close ties to Senate Republicans will help smooth the path for Kavanaugh.
In addition, the conservative group Judicial Crisis Network will launch a $1.4 million ad buy in support of Kavanaugh, running advertisements in Alabama, Indiana, North Dakota, and West Virginia – states with Democratic senators on the fence about supporting Trump’s nominee.
A senior White House source told Fox News that five Democratic senators – Judiciary Committee ranking member Dianne Feinstein, Joe Donnelly of Indiana, Doug Jones of Alabama, Heidi Heitkamp of North Dakota, Joe Manchin of West Virginia – were invited to attend the nomination announcement. All five declined.
Of the five, Donnelly, Heitkamp, and Manchin are up for re-election in November. All three voted to confirm Gorsuch last year. Jones, who was elected to the Senate in a December 2017 special election after Gorsuch was confirmed, is not up for re-election until 2020. He told CNN on Sunday that he was “not an automatic, knee-jerk no” on any of the potential nominees.
Republican Sens. Susan Collins of Maine and Lisa Murkowski of Alaska, both of whom have been seen as most likely to vote against a Trump nomination, also declined invitations to attend.
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