US president Donald Trump had Americans on tenterhooks until 9pm on July 9, speculating about his pick for the US Supreme Court to replace recent retiree Justice Anthony Kennedy. The president’s announcement from the East Room of the White House during prime time television hours began with an expression of gratitude for Kennedy’s service—then he announced a former Kennedy clerk to take the justice’s spot, judge Brett Kavanaugh.
“I believe that an independent judiciary is the crown jewel of the republic,” Kavanaugh said when accepting the president’s nomination, echoing the words Trump used moments before. A Washington DC Circuit Court of Appeals judge and Harvard Law School professor—hired to teach by Supreme Court justice Elena Kagan, as he pointed out tonight—Kavanaugh articulated his “judicial philosophy,” saying judges must be “independent, and must interpret the law and not make the law.” The judge indicated that on the high court he would faithfully interpret the Constitution as it is written, providing an unsurprising nod to originalism.
Kavanaugh, a Catholic, was careful to make himself sound open-minded, reasonable, and apolitical, although, as Quartz’s Heather Timmons noted, he’s “played a role in several of the most important partisan battles in US politics over the past 20 years.” As a young attorney in prosecutor Kenneth Starr’s office, he was the lead author of the salacious Starr Report calling for president Bill Clinton’s impeachment, and represented George W. Bush in the Florida vote recount that awarded the 2000 election to Bush.
The nominee emphasized his admiration of women young and old. Kavanaugh noted that it was his mother—a former public school teacher who went to law school and became a judge—who inspired him to follow in her lawyering footsteps and will always be the only “Judge Kavanaugh” in his mind. His father, also a lawyer, was mentioned merely for inspiring the nominee’s love of sports, which Kavanaugh says he has passed on to his young daughters, whose basketball teams he coaches.
“Men for others”
The nominee also pointed out that his legal clerks have been mostly women. And—though he claimed to technically live by the creed of his Jesuit high school, “Men for others”—he appeared to also be subtly attempting to reassure Americans that he’s not necessarily intent on overturning precedents like Roe v. Wade, which ensures access to abortion. Liberal pundits have expressed concern on the issue. Kavanaugh mentioned that he is an active member of Washington DC’s Catholic community; he noted that while that community disagrees on many topics, it engages together in good deeds, like feeding the homeless.
Trump also took a somber and relatively measured approach to the announcement tonight. “I do not ask personal opinions or political views,” the president said before announcing his second Supreme Court pick in two years. He said that picking a new justice was the most important responsibility of his office other than matters of war. He noted that he understood the gravity of this matter and believed Kavanaugh has “impeccable credentials” like Neil Gorsuch, last year’s replacement for “the late great Justice Antonin Scalia.”
But there may be more to Trump’s choice than just support for Kavanaugh’s alleged judicial independence. The judge, who has authored more than 300 opinions, has also written fairly extensively about presidential authority and the separation of powers. Trump could be betting that having Kavanaugh on the court could be a boon to him in the face of special counsel Robert Mueller’s investigation of his activities.
In an article in the Minnesota Law Review (pdf), Kavanaugh also noted his position on Senate confirmation hearings—a process he’ll soon be facing. “Substantively, a debate continues to bubble about whether a Supreme Court nominee’s judicial philosophy is a fair basis for inquiry by the Senate (and for voting against a nomination), or whether the confirmation process should focus only on whether a nominee meets objective criteria pertaining to qualifications, temperament, ethical propriety, and the like,” he wrote. He believes that the hearings should not be ideological battles and that nominees should “receive prompt and respectful treatment, and key judicial vacancies can be filled without unnecessary delay.”
Those for and against him
Whether he’ll be lucky enough to receive such treatment himself is unclear. The left is not expected to be pleased with this pick. “If Trump is allowed to replace Kennedy with a nominee in the mold of his last pick, Neil Gorsuch, the effect will wreak havoc on our country for generations to come,” writes Marge Baker, executive vice president of People for the American Way, in a statement. “Trump’s nominees to the lower courts have been a rogues gallery of right-wing activists, virtually all of whom have spent their careers pushing an extreme ideological agenda in the law.”
As for the right, many will likely back Trump’s pick in the hopes of pushing the high court in a conservative direction, but not everyone is pleased. The American Family Association has already expressed its opposition to Kavanaugh, calling on the Senate to reject him.
Kavanaugh will have the help of an ad campaign sponsored by conservatives to convince colleagues and citizens. The Judicial Crisis Network, which describes itself as “dedicated to strengthening liberty and justice” and is committed to “limited government,” has already purchased a $1.4 million ad campaign on national cable and digital TV, and on stations in Alabama, Indiana, North Dakota, and West Virginia, featuring an introductory bio spot about the nominee. The campaign follows an earlier one from the organization—entitled “Another Great Justice” and costing seven figures—that was launched the day after Justice Kennedy announced his retirement.