This evening, President Trump nominated federal judge Brett M. Kavanaugh to the Supreme Court, elevating a conservative stalwart with deep ties to the Republican establishment to succeed retiring Justice Anthony M. Kennedy and triggering a partisan war over the court’s future.
Kavanaugh, 53, who lives in the Maryland suburbs, serves on the U.S. Court of Appeals for the D.C. Circuit and worked in George W. Bush’s White House before moving to the federal bench. He served as a clerk to Kennedy in the early 1990s alongside Justice Neil M. Gorsuch, whom Trump nominated for the Supreme Court last year.
“In keeping with President Reagan’s legacy, I do not ask about a nominee’s personal opinions,” Trump said in an announcement at the White House. “What matters is not a judge’s political views but whether they can set aside those views to do what the law and the Constitution require. I am pleased to say that I have found, without doubt, such a person. Tonight, it is my honor and privilege to announce that I will nominate Brett Kavanaugh to the United States Supreme Court.”
Kavanaugh, who was joined by his wife, two daughters and parents, told Trump that he has “witnessed firsthand your appreciation for the vital role of the American judiciary.”
“No president has ever consulted more widely or talked with more people from more backgrounds to seek input about a Supreme Court nomination,” Kavanaugh said. “Mr. President, I am grateful to you, and I am humbled by your confidence in me.”
Kavanaugh’s link to the Bush political dynasty gave Trump pause during the search process, but ultimately he decided that Kavanaugh’s lengthy conservative judicial record made up for any lingering concerns about how some of his core supporters would view the pick, White House officials said.
Republican leaders firmly believe that Kavanaugh, if confirmed, could be instrumental in pitching the ideological makeup of the court to the right and leaving a conservative imprint on the law for a generation. They also see the coming confirmation fight as a chance to galvanize their voters ahead of this year’s midterm elections, where the GOP’s 51-seat Senate majority is at risk.
Kennedy, who was nominated by President Ronald Reagan in 1987, had long served as the pivotal vote on the court.
Democrats are preparing for what they hope will be a prolonged showdown on Capitol Hill, determined to rally in defense of Roe v. Wade, the landmark abortion rights decision; LGBTQ rights; and same-sex marriage — all areas of the law that they fear could be ruptured by the court.
Kavanaugh was one of four federal judges who emerged as Trump’s finalists after interviews early last week. Amy Coney Barrett, Thomas M. Hardiman and Raymond M. Kethledge were also vetted by the White House and considered by Trump in recent days.
Each of them had certain blocs of Trump’s circle or the Republican Party serving as their advocates.
Kavanaugh was boosted by the Bush network and legal conservatives; Barrett was touted by social conservatives; Hardiman was recommended by the president’s sister and sometimes-confidante, retired federal judge Maryanne Trump Barry.
Trump, who has relished the spectacle of secrets being revealed and shortlists being winnowed since his days hosting NBC’s “The Apprentice,” entered the camera-lined East Room at the White House on Monday with aplomb similar to finales of his former television program, with the moment staged to be as much about his role as the decider in chief as about a seat on the high court.
And Trump, who confides daily in a far-flung network of advisers and associates, kept his decision under wraps until hours before the announcement, even as he made calls Monday morning and spent the weekend at his New Jersey golf club huddling with friends such as Fox News host Sean Hannity.
When asked about his choice Sunday, Trump was upbeat in response but deliberately vague, a White House official said, noting that Trump took the same tack when greeting reporters Sunday afternoon.
“It’s still — let’s say it’s the four people. But they’re excellent. Every one. You can’t go wrong,” Trump said.
Monday’s scene, set among white columns and flags, was a rare instance of a norm-shredding president — who has repeatedly turned to raucous arena rallies and fiery tweets as the bastions of his presidency — embracing the traditional trappings of the office to elevate a defining decision, much as he did last year when he nominated Neil M. Gorsuch for the court.
The White House announced earlier Monday that former senator Jon Kyl (R-Ariz.), 76, who served on the Senate Judiciary Committee and is close to Senate leaders, had agreed to serve as the “sherpa” for the nominee. That guiding presence — an adviser who works closely with the White House and introduces the nominee to senators, but is not a federal employee — is usually a seasoned party figure. Kyl is a lobbyist in the Washington headquarters of Covington & Burling.
Kavanaugh faces many hurdles: an intense media and political spotlight, and a divided Senate where Republicans hold just 51 seats. Senate Democrats running for reelection in states won by Trump are also facing thorny political dynamics — support the nominee and appeal to Trump’s voters, or oppose and rally their own party? Moderate Republicans, meanwhile, are on edge about how the nominee will respond to questions about social issues such as abortion.
The White House on Monday invited several key lawmakers, Republicans and Democrats, to the announcement. One of them was Sen. Susan Collins (R-Maine), who declined to attend the event.
“I’ll get a better sense watching,” she told reporters.
Senate Democrats such as Joe Manchin III (W.Va.), Heidi Heitkamp (N.D.), Doug Jones (Ala.) and Joe Donnelly (Ind.) were also invited but declined to attend.
“While I appreciate the invitation from the White House to attend this evening’s announcement, I declined so that I can meet first with the nominee in a setting where we can discuss his or her experience and perspectives,” Donnelly said in a statement.
Those red-state Democrats will be under pressure from conservative groups to get behind Trump’s nominee.
The Judicial Crisis Network, which launched an ad blitz in the wake of Kennedy’s retirement last month, announced Monday that it is embarking on a week-long, $1.4 million ad campaign touting the nominee’s personal story. The new round of ads will run nationally and will also target four states — Alabama, Indiana, North Dakota and West Virginia.
Kennedy’s role at the center of a court equally balanced between more predictable conservatives and more consistent liberals made him the most essential member of the modern Supreme Court. His replacement by a former clerk has been something he has mused about — his proteges are strewn throughout the federal judiciary — even if they are more conservative than he is.
Kennedy cast the deciding vote that found a constitutional right for same-sex couples to marry. He determined how far government may intrude on a woman’s right to an abortion, and how and when it is appropriate for government to exercise affirmative action. His decisions shielded juveniles and the intellectually disabled from the death penalty. He found that those seized in the fight against terrorism had rights in U.S. courts.
His successor will probably not share those views, although it is unclear if and how quickly the court might move to change those decisions.
But an apt comparison might be 2006, when Samuel A. Alito Jr. replaced another justice who had occupied the center of the court, Sandra Day O’Connor. Both were chosen by Republican presidents, but Alito moved the court to the right on issues such as campaign finance restrictions and affirmative action.
Kavanaugh has served on the federal bench for 12 years. Before becoming a judge, he was a fast-rising Republican lawyer who first gained notice decades ago when he helped to investigate President Bill Clinton under independent counsel Kenneth W. Starr.
Kavanaugh has since argued that presidents should not be distracted by civil lawsuits, criminal investigations, or even questions from a prosecutor or defense lawyer while in office.
A Yale Law School graduate, Kavanaugh was plunged into national politics when he was tasked in 1994 with investigating the death of Clinton’s deputy counsel, Vincent Foster, and later with laying out the grounds for impeaching Clinton in the wake of the president’s affair with a White House intern.
Bush nominated Kavanaugh to the appeals court in 2003, but Democrats held up his confirmation for three years because of his work in the Bush White House and on the Starr report. He was confirmed in 2006 by a vote of 57 to 36.
On the D.C. Circuit, Kavanaugh has been a consistent conservative with rulings that often advance executive power and restrain the government bureaucracy. In a ruling later reversed by his colleagues, Kavanaugh declared unconstitutional the structure of a consumer watchdog agency, finding that it gives too much executive control to a “single unaccountable, unchecked director.” In a Second Amendment case, Kavanaugh said he would have struck down D.C.’s regulations banning certain semiautomatic long guns.
Though he is considered to the right of Kennedy, a recent opinion on abortion has prompted criticism from some conservatives. Last fall, Kavanaugh ruled against an immigrant teenager in federal custody who sought to immediately terminate her pregnancy — but he did not go as far as another D.C. Circuit judge who said the teen had no constitutional right to an elective abortion.
Kavanaugh grew up in Bethesda and attended Georgetown Preparatory School, the same Jesuit high school as Gorsuch. He is an observant Catholic, regularly attending church at The Shrine of the Most Blessed Sacrament in Northwest Washington with his wife and two daughters. He serves meals at a local Catholic Charities program.
The selection of Kavanaugh underscored the influence that traditional Republicans have maintained in Trump’s judicial nominations even as they struggle in the administration and on Capitol Hill to drive debates on trade and other policies.
Going back to his 2016 presidential campaign, Trump has entrusted White House counsel Donald McGahn, a low-key conservative who served as the campaign’s lawyer, and outside groups such as the Federalist Society and the Heritage Foundation to cull his list of prospects for the federal bench.
While the relationship between McGahn and Trump has routinely been strained over the past year because of the special counsel probe into Russia’s election interference and possible obstruction of justice by the president, Trump has nevertheless continued to rely heavily on McGahn and Federalist Society Executive Vice President Leonard Leo, along with Senate Majority Leader Mitch McConnell (R-Ky.).
McGahn advised Trump to pick Gorsuch, then a Colorado appeals court judge, to fill the previous Supreme Court opening. McGahn has also shepherded the administration’s focus on transforming the lower federal courts. Trump has seen more than 35 of his nominees confirmed, more than doubling the total for President Barack Obama at the same point in his presidency.
Strong support from McGahn and Leo for Kavanaugh was pivotal during the close of the search. As Trump deliberated, they spoke with him by phone and talked up Kavanaugh’s record as rock-solid evidence of his conservatism, now and in the years ahead, according to two people involved in the process.
McGahn was also positive about Kavanaugh in recent exchanges with key Republican senators and their advisers, in particular those, including Sen. Rand Paul (R-Ky.), who have questioned Kavanaugh’s conservatism based on various rulings he has made on health care and abortion, the people said.
Still, McGahn, Leo and other admirers of Kavanaugh were careful throughout their discussions with Trump to avoid tilting the president in that direction, knowing from their past deliberations that Trump is suspectible to taking a contrarian view if he feels he is being pushed too hard toward a position that is encouraged by many Republican leaders, the people added.
McConnell did not rally around Kavanaugh in his conversations with Trump. In a Friday phone call, the GOP Senate leader instead noted that Hardiman or Kethledge could be easier to confirm in the Senate, according to two Republicans briefed on the call who were not authorized to speak publicly and so spoke on the condition of anonymity.
McConnell observed that those two candidates appeared to lack the political charge that has infused the Supreme Court candidacies of Kavanaugh and Barrett, with scrutiny surrounding Kavanaugh’s Bush ties and his career paper trail, as well as Barrett’s social views, the Republicans said.
(c) 2018 The Washington Post – By Robert Costa, Robert Barnes and Felicia Sonmez