Brett Kavanaugh is Donald Trump’s new pick for the Supreme Court
The nominee would steer America rightward
ON JULY 9th, in a prime-time ceremony, President Donald Trump announced that he had chosen Brett Kavanaugh to be his new pick for the Supreme Court. As his nominee walked into the East Room of the White House flanked by his wife and two daughters, the president praised his “impeccable credentials, unsurpassed qualifications and a proven commitment to equal justice under the law”. Mr Kavanaugh, the president’s second nominee to the Supreme Court in as many years, has twin degrees from Yale. He clerked for three judges, including Justice Anthony Kennedy, the man he hopes to replace. He worked for Kenneth Starr in the investigation of Bill Clinton. He spent five years as a lawyer in George W. Bush’s administration. And since 2006, he has been a judge on the second-most powerful tribunal in America: the Court of Appeals for the District of Columbia Circuit.
Mr Trump settled on 53-year-old Mr Kavanaugh after a reality-show style build-up in which three less decorated contenders—including Thomas Hardiman, the runner-up when Mr Trump chose Neil Gorsuch for the late Antonin Scalia’s seat in 2017—were dispatched behind the scenes. Aside from the Trumpian presentation, the pick is an unremarkable choice for a Republican president. Jeb Bush or Marco Rubio might easily have made the same choice. But for Mr Trump, who has departed from so many presidential norms, to have picked someone with close ties to the Washington, DC establishment, may seem surprising for its utter conventionality.
There is method to this. Mr Kavanaugh has been vetted and vaunted by the Federalist Society, the conservative legal organisation that has approved Mr Trump’s picks for his Supreme Court and lower-court appointments. The nearly 300 opinions Mr Kavanaugh wrote as an appellate judge place him as a solid and reliable conservative, but few of them give Democrats obvious points of attack. Since the Washington, DC circuit court hears mainly regulatory and separation-of-powers cases that tend not to make headlines, Mr Kavanaugh has authored relatively few rulings touching on divisive political questions.
But the Supreme Court hopeful has issued conservative rulings on religious liberty and guns. And in a recent case that touches on one of the biggest concerns about a post-Kennedy court—the future of abortion rights—Mr Kavanaugh’s opinion included a telling line. Garza v Hargan did not involve a state law limiting abortion access; it was not an outright challenge to Roe v Wade, the 1973 ruling that Mr Trump pledged would “automatically” be overturned when his Supreme Court picks took the bench. It was the case of a 17-year-old girl who was pregnant when she arrived illegally in America in October 2017. When she sought an abortion, the girl’s guardians, the Department of Health and Human Services (HHS), balked, saying it felt a duty to protect “all children and their babies in our facilities”. A panel of the DC Circuit Court of Appeals voted 2-1 to set aside a district-court judge’s order permitting the girl to have an abortion, but when the entire court re-heard the case, it sided with the girl.
That provoked a dissent from Mr Kavanaugh. He said the decision to permit the girl to have the abortion was “based on a constitutional principle as novel as it is wrong”. His colleagues had, he wrote, wrongly invented “a new right for unlawful immigrant minors in US government detention to obtain immediate abortion on demand”. By reciting a scare-phrase familiar in anti-abortion rhetoric (“abortion on demand”), Mr Kavanaugh sent an unsubtle message that he may not be Roe’s best friend. And by arguing that it is no “undue burden” to require a girl who is 16 weeks pregnant to wait another fortnight for an abortion, he signalled he had interpreted Planned Parenthood v Casey, the 1992 follow-up to Roe, to permit rather onerous regulations on the right to choose.
Yet Mr Kavanaugh did not take the more radical move of declaring, as one of fellow dissenters did, that undocumented immigrants, as non-citizens, have no abortion rights at all. This may owe something to Mr Kavanaugh’s relative moderation. It may also be an indication of how a judge behaves when he knows he is up for a Supreme Court seat and understands that a coded message to pro-lifers raises fewer red flags for pro-choice Republican senators in a confirmation hearing. If Democrats are to have a hope of defeating the Kavanaugh nomination, they will have to achieve unanimity in their 49-senator caucus (no easy feat) and persuade at least one of those two Republican senators, Susan Collins of Maine or Lisa Murkowski of Alaska, to defect.
Abortion is not the only issue that should concern Democratic senators about Mr Trump’s pick. In his dozen years as an appellate judge, Mr Kavanaugh has shown a willingness to curtail and even undermine federal agencies that regulate the economy and the environment. He has been a consistent vote to rein in the Environmental Protection Agency’s (EPA) authority, for example. In 2012, he wrote that the EPA had exceeded its charge in policing greenhouse gases under the Clean Air Act. Two years later he said the agency had erred in failing to consider costs when regulating power plants. Earlier this year, Mr Kavanaugh wrote that because the Consumer Financial Protection Bureau had a single director shielded from at-will removal, it unconstitutionally interfered with the president’s power. Independent agencies, he wrote, exert “massive power” in the “absence of presidential supervision” and thus “pose a significant threat to individual liberty”.
Mr Kavanaugh’s views on the structure of government and the powers of presidents may have led Mr Trump to give the late addition to his shortlist a closer look. With Robert Mueller’s special-counsel investigation into ties between the Trump campaign and Russia inching toward a conclusion, the Supreme Court could be called upon to resolve several critical questions in the coming months. Can a president be indicted while in office? Can he be tried for a crime? After playing an integral role in drafting the articles of impeachment for Bill Clinton, Mr Kavanaugh had a change of heart. A 1998 law review article had him mulling “whether the constitution allows indictment of a sitting president”. That question is “debatable”, he wrote. Eleven years later, he implored Congress to consider “exempting a president—while in office—from criminal prosecution and investigation, including from questioning by criminal prosecutors or defense counsel”. It can be “time-consuming and distracting”, he wrote, for presidents to deal with legal troubles while trying to lead the free world. “[A] president who is concerned about an ongoing criminal investigation”, he concluded, “is almost inevitably going to do a worse job”.
Mr Trump settled on 53-year-old Mr Kavanaugh after a reality-show style build-up in which three less decorated contenders—including Thomas Hardiman, the runner-up when Mr Trump chose Neil Gorsuch for the late Antonin Scalia’s seat in 2017—were dispatched behind the scenes. Aside from the Trumpian presentation, the pick is an unremarkable choice for a Republican president. Jeb Bush or Marco Rubio might easily have made the same choice. But for Mr Trump, who has departed from so many presidential norms, to have picked someone with close ties to the Washington, DC establishment, may seem surprising for its utter conventionality.
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But the Supreme Court hopeful has issued conservative rulings on religious liberty and guns. And in a recent case that touches on one of the biggest concerns about a post-Kennedy court—the future of abortion rights—Mr Kavanaugh’s opinion included a telling line. Garza v Hargan did not involve a state law limiting abortion access; it was not an outright challenge to Roe v Wade, the 1973 ruling that Mr Trump pledged would “automatically” be overturned when his Supreme Court picks took the bench. It was the case of a 17-year-old girl who was pregnant when she arrived illegally in America in October 2017. When she sought an abortion, the girl’s guardians, the Department of Health and Human Services (HHS), balked, saying it felt a duty to protect “all children and their babies in our facilities”. A panel of the DC Circuit Court of Appeals voted 2-1 to set aside a district-court judge’s order permitting the girl to have an abortion, but when the entire court re-heard the case, it sided with the girl.
That provoked a dissent from Mr Kavanaugh. He said the decision to permit the girl to have the abortion was “based on a constitutional principle as novel as it is wrong”. His colleagues had, he wrote, wrongly invented “a new right for unlawful immigrant minors in US government detention to obtain immediate abortion on demand”. By reciting a scare-phrase familiar in anti-abortion rhetoric (“abortion on demand”), Mr Kavanaugh sent an unsubtle message that he may not be Roe’s best friend. And by arguing that it is no “undue burden” to require a girl who is 16 weeks pregnant to wait another fortnight for an abortion, he signalled he had interpreted Planned Parenthood v Casey, the 1992 follow-up to Roe, to permit rather onerous regulations on the right to choose.
Yet Mr Kavanaugh did not take the more radical move of declaring, as one of fellow dissenters did, that undocumented immigrants, as non-citizens, have no abortion rights at all. This may owe something to Mr Kavanaugh’s relative moderation. It may also be an indication of how a judge behaves when he knows he is up for a Supreme Court seat and understands that a coded message to pro-lifers raises fewer red flags for pro-choice Republican senators in a confirmation hearing. If Democrats are to have a hope of defeating the Kavanaugh nomination, they will have to achieve unanimity in their 49-senator caucus (no easy feat) and persuade at least one of those two Republican senators, Susan Collins of Maine or Lisa Murkowski of Alaska, to defect.
Abortion is not the only issue that should concern Democratic senators about Mr Trump’s pick. In his dozen years as an appellate judge, Mr Kavanaugh has shown a willingness to curtail and even undermine federal agencies that regulate the economy and the environment. He has been a consistent vote to rein in the Environmental Protection Agency’s (EPA) authority, for example. In 2012, he wrote that the EPA had exceeded its charge in policing greenhouse gases under the Clean Air Act. Two years later he said the agency had erred in failing to consider costs when regulating power plants. Earlier this year, Mr Kavanaugh wrote that because the Consumer Financial Protection Bureau had a single director shielded from at-will removal, it unconstitutionally interfered with the president’s power. Independent agencies, he wrote, exert “massive power” in the “absence of presidential supervision” and thus “pose a significant threat to individual liberty”.
Mr Kavanaugh’s views on the structure of government and the powers of presidents may have led Mr Trump to give the late addition to his shortlist a closer look. With Robert Mueller’s special-counsel investigation into ties between the Trump campaign and Russia inching toward a conclusion, the Supreme Court could be called upon to resolve several critical questions in the coming months. Can a president be indicted while in office? Can he be tried for a crime? After playing an integral role in drafting the articles of impeachment for Bill Clinton, Mr Kavanaugh had a change of heart. A 1998 law review article had him mulling “whether the constitution allows indictment of a sitting president”. That question is “debatable”, he wrote. Eleven years later, he implored Congress to consider “exempting a president—while in office—from criminal prosecution and investigation, including from questioning by criminal prosecutors or defense counsel”. It can be “time-consuming and distracting”, he wrote, for presidents to deal with legal troubles while trying to lead the free world. “[A] president who is concerned about an ongoing criminal investigation”, he concluded, “is almost inevitably going to do a worse job”.
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