Brett Kavanaugh, 52, is President Donald Trump’s second pick for the U.S. Supreme Court in as many years. The nominee now faces a Senate confirmation test, with Republicans moving to settle the matter before the November elections, and Democrats hoping to stall or block the nomination.
The nomination of Kavanaugh comes with conservatives hoping to overturn abortion and same-sex marriage rulings. President Trump said during his campaign for the office that he would appoint judges who would overturn the Court’s 1973 Roe v. Wade decision that made abortion legal in the country.
Kavanaugh is a judge on the U.S. Court of Appeals for the D.C. Circuit. He is a former law clerk for Justice Kennedy and was a senior associate counsel to President George W. Bush. Kavanaugh was confirmed to the D.C. Circuit in 2006. He worked as staff secretary in the executive office of President George W. Bush, and also worked on the Bush campaign during the Florida recount vote in 2000.
Although he was behind the scenes at the time, his more well-known work was with Independent Counsel Kenneth Starr during what begin as the Whitewater investigation, but later included the Vincent Foster suicide and the Monica Lewinsky affair. Kavanaugh is credited as being a principal author of the voluminous “Starr Report.”
Kennedy, who briefly served in the California Army National Guard, was nominated by President Ronald Reagan after Senate Democrats blocked the previous nominations of Robert Bork and Douglas Ginsburg.
In writing for the SCOTUSblog, Edith Roberts said Kavanaugh has a “sterling reputation in conservative political and legal circles.”
“Perhaps because of his years of executive-branch experience, Kavanaugh generally brings a pragmatic approach to judging, although his judicial philosophy is conservative, and he has applied principles of textualism and originalism espoused by the late Justice Antonin Scalia,” Roberts noted in her report on Kavanaugh.
Other notes by Roberts on Kavanaugh include the following.
• Many of Kavanaugh’s opinions were against Obama-era EPA regulations, with several later reversed in full or in part by the Supreme Court.
• Kavanaugh has not always pleased ideological purists in conservative circles. For example, Kavanaugh rejected two constitutional challenges to the ACA.
• “In recent years, Kavanaugh has begun to spell out an approach to statutory interpretation, in what he explains as an effort to limit judicial activism. In a 2017 speech at Notre Dame Law School, Kavanaugh, like Roberts during his confirmation hearing, endorsed a ‘vision of the rule of law as a law of rules, and of the judge as umpire.’”
• In labor and employment law cases more generally, Kavanaugh’s rulings have tended to favor employers.
Although appointed by a Republican president, Kennedy’s bench history has been politically mixed. He recently was part of the majority opinion in Planned Parenthood v. Casey which blocked attempts to limit the right to an abortion, and wrote the opinion in Obergefell v Hodges, the case which legalized same sex marriage. However, he was considered the swing vote on the recent decision in the Masterpiece v. Colorado Civil Rights case that reversed a lower court ruling against a baker in Colorado who refused to bake a cake for a same-sex wedding.
Kavanaugh’s nomination will likely include questions about his views on abortion, same-sex marriage and other hot-button social issues. The closely divided U.S. Senate – 51 Republicans, 47 Democrats, and two Independents who caucus with Democrats – leaves little room for political error for Republicans. Republican Senators Susan Collins of Maine and Lisa Murkowski of Alaska are critical. Collins said prior to Kavanaugh’s nomination that she wanted a nominee to agree that Roe v. Wade is “settled law.”
However, there are several Democratic U.S. Senators – U.S. Sens. Heidi Heitkamp, D-N.D., and Joe Manchin, D-W.V., for example – facing re-election opposition in November in conservative states. They are under pressure to assuage conservative-leaning Democrats in their states by supporting Trump’s nominee.
U.S. Senate Leader Mitch McConnell, R-Ky., had encouraged Trump to nominate Thomas Hardiman or Raymond Kethledge, a judge on the U.S. Circuit Court of Appeals for the Sixth Circuit, because they would be easier to confirm.
The only two Arkansans who will get to vote on Kavanaugh’s nomination supported the selection.
“Judge Kavanaugh is a distinguished jurist whose extensive experience and respect within the legal community make him uniquely qualified to serve on the Supreme Court. He has had an impressive legal career that the Senate recognized by confirming him with bipartisan support to the federal bench,” U.S. Sen. John Boozman, R-Ark., said in a statement. “I encourage my colleagues to thoroughly consider this nomination. I look forward to a fair confirmation process and hearing more from Judge Kavanaugh about his judicial philosophy.”
U.S. Sen. Tom Cotton, R-Ark., sent this statement: “Judge Kavanaugh has an impressive record as a jurist and as a lawyer. This is a highly consequential nomination, and it deserves the most careful consideration, so I look forward to meeting with Judge Kavanaugh soon to discuss more in detail his views on the Supreme Court’s role in our constitutional democracy.”
Dr. Jay Barth, the M.E. and Ima Graves Peace Distinguished Professor of Politics at Hendrix College, told Talk Business & Politics prior to Trump’s selection of Hardiman that Kennedy’s swing vote background creates disadvantages and opportunities for conservatives and liberals.
“The fact that the swing justice on the Court has just retired ratchets up the attention on the coming nomination battle and, of course, that has implications for the fall campaign,” Barth said. “This likely will turn up enthusiasm among religious right voters who see hopes for finally going after the Roe [abortion] decision, but it will also ratchet up enthusiasm among those on the left who see so many precarious court issues down the line. … Republicans, worried about low turnout from their base, are probably beneficiaries of this event to some degree.”
Also in an interview before the Monday night pick, Robert Coon, managing partner at Little Rock-based Impact Management Group, said timing would be key for Republicans once the nominee is named.
“Should they fail to find a nominee that can build consensus among Republicans in the Senate to obtain the necessary 51 votes, they could squander this historic opportunity by losing control of the chamber in November,” he said.
Following are three other judges who were reportedly on the short list prior to Trump’s selection of Kavanaugh:
• Amy Barrett, 45
Barrett serves as a judge on the U.S. Court of Appeals for the 7th Circuit. She has been on the law faculty at George Washington University and Notre Dame. Barrett was also part of the legal team representing George W. Bush in the Bush v. Gore case.
• Thomas Hardiman, 52
Hardiman is a judge with the U.S. Court of Appeals for the 3rd Circuit. He was on the short list to succeed with now Justice Neil Gorsuch to succeed the late Justice Antonin Scalia. He is a graduate of the Georgetown School of Law, and was first appointed to a federal bench – U.S. District Court Judge for the Western District of Pennsylvania – by President George W. Bush.
• Raymond Kethledge, 51
Kethledge is a judge on the U.S. Circuit Court of Appeals for the Sixth Circuit. He served as a law clerk for Justice Kennedy in 1997. In 1998 he joined the a law firm in Detroit, and in 2001 joined the legal department at Ford Motor Co. He was appointed in 2006 to the Sixth Circuit, but wasn’t confirmed until 2008.