How appropriate that President Donald Trump’s announcement of his Supreme Court nominee preempted part of ABC’s The Bachelorette. One of these televised happenings is an overly dramatic, ratings-obsessed reality show, the other a program in which a woman chooses a fiancé.
Trump’s prime-time selection of Judge Brett Kavanaugh, 53, is likely to please the Republican base. Kavanaugh has been a reliable conservative in his approximately 300 opinions issued on the District of Columbia Circuit Court of Appeals (often considered the second most powerful court in the land) and, if confirmed by the GOP-controlled Senate, he could shift the high court dramatically to the right for years to come.
He has also been a reliable supporter of Republican causes. He served in the second Bush administration, and prior to that was part of the 2000 presidential recount and the the highly contentious Kenneth Starr investigation of former President Bill Clinton.
Conveniently for Trump, and perhaps serendipitously for Kavanaugh, his views on presidential inquiries have migrated since then. In 2009 he wrote that presidents should be free from civil and criminal investigations.
Like all recent nominees, Kavanaugh is a highly accomplished appellate judge with a keen intellect. He deserves the thoughtful consideration of the Senate, though the confirmation process is sure to turn ugly given the high stakes and lingering Democratic resentment over Republicans’ refusal to even consider the eminently qualified Merrick Garland, nominated in 2016 by President Barack Obama.
Kavanaugh’s career and many rulings provide a lengthy paper trail, perhaps offering more fodder for critics to pick apart than would be the case with other potential nominees. His credentials, while impressive, are virtually identical to eight current members — an appellate judge with a degree from an Ivy League law school.
Like Trump’s previous pick, Neil Gorsuch, Kavanaugh comes from a judicial tradition fiercely advocated by many Republicans and viewed with some trepidation in other parts of the political spectrum. Its hallmark is an ardent belief that the intent of the Constitution is clear, and supportive of conservative conclusions. In more tangible terms, it has been used to push a devolution of power from Washington to the states and an expansive view of the First Amendment “free exercise” of religion clause.
If confirmed, Kavanaugh would replace Anthony Kennedy, the conservative who sided with progressive appointees to form a slim majority affirming the right to marry someone of the same sex. If Kavanaugh, who once clerked for Kennedy, is as conservative as his backers hope, he could help cement a majority that whittles away at that right.
Much of the attention during his confirmation hearings will no doubt focus on the issue of abortion. While ruling only rarely on the topic, a dissent Kavanaugh issued in a case involving an undocumented teenager has delighted those opposed to abortion. In that opinion, he asserted that “the government has permissible interests in favoring fetal life, protecting the best interests of a minor, and refraining from facilitating abortion.”
Democrats will warn that a court with so many conservatives would overturn Roe v. Wade. But a more likely prospect, given the degree to which such a ruling would upend precedent, is a de facto repeal by allowing ever increasing restrictions on abortions.
Amid the glow in the White House East Room, Kavanaugh provided a preview of his confirmation hearing, vowing to be independent and “keep an open mind in every case.”
His reception from Democratic senators and interest groups will be considerably less friendly. The consideration of his nomination is likely to be highly contentious and, at times, circus-like. The spectacle began Monday night with Trump’s melodramatic announcement. At least there wasn’t a rose involved.
— USA Today