President Trump tapped conservative stalwart Brett Kavanaugh for the Supreme Court on Monday in hopes of placating his political base and locking in a right-wing judiciary for years to come.
After days of secretive back-to-back interviews and frenzied speculation, Trump finally trotted out the U.S. Court of Appeals judge for a dramatic prime-time TV announcement in the East Room of 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,” Trump said of Kavanaugh, who will replace retiring Justice Anthony Kennedy if the Senate confirms him.
Kavanaugh, who used to clerk for Kennedy, has an extensive resume touting a plethora of conservative causes and opinions.
The 53-year-old Washington jurist lavished praise on Trump and shouted out his former boss.
“Mr. President, I am grateful to you, and I’m humbled by your confidence in me,” Kavanaugh said, standing alongside Trump. “Justice Kennedy devoted his career to securing liberty. I am deeply honored to be nominated to fill his seat on the Supreme Court.”
Kavanaugh will likely face combative Senate confirmation hearings, with Democrats expected to grill him on divisive issues such as abortion, gay rights and the Second Amendment. Contrary to other Trump Supreme Court finalists, Kavanaugh doesn’t have a record of publicly criticizing the landmark Roe vs. Wade ruling, which legalized abortion nationwide.
However, Kavanuagh faced criticism for dissenting last year against permitting a migrant Central American 17-year-old to have an abortion while in federal custody, complaining it would hand rights to undocumented immigrants to have “immediate abortion on demand.”
President George W. Bush nominated Kavanaugh to his current judgeship in 2003, and commended Trump on nominating him for the high court.
“Brett is a brilliant jurist who has faithfully applied the Constitution and laws throughout his 12 years on the D.C. circuit,” Bush said in a statement. “He will make a superb justice.”
Kavanaugh faced a grueling confirmation process after Bush tapped him for the Washington court. It took the Senate three years to confirm him after Democrats accused him of being overly partisan while he dodged questions on torture and the importance of judicial precedent.
On abortion, Kavanaugh vowed during those confirmation hearings that he would follow Supreme Court precedent, but he refused to assert his personal opinion on Roe vs. Wade. In response, Sen. Chuck Schumer (D-N.Y.) at the time called Kavanaugh’s nomination “not just a drop of salt in the partisan wounds; it is the whole shaker.” Schumer was similarly salty Monday after Trump’s announcement.
“With this pick, the President is making good on his pledge to ‘punish’ women for their choices,” Schumer said, referencing one of Trump’s most infamous campaign pledges. “Judge Kavanaugh got the nomination because he passed this litmus test, not because he’ll be an impartial judge on behalf of all Americans.”
Citing his dissent in the case of the 17-year-old undocumented teen, Brooklyn Law School Prof. Bill Araiza said he sees someone in Kavanaugh who would certainly be in favor of overturning the 1973 Roe vs. Wade decision.
“He used strong language in that ruling that kind of sounded like dog whistles to the larger anti-abortion crowd,” Araiza told the Daily News. “It’s inconceivable that he would not be a reliable conservative vote on hot-button issues, including abortion.”
Before his federal judgeship, Kavanaugh worked for special counsel Ken Starr on the high-profile investigation that resulted in President Bill Clinton’s impeachment. Kavanaugh notably advised Starr that not even a President can use the attorney-client privilege to avoid complying with a federal subpoena — an argument that could prove relevant in special counsel Robert Mueller’s investigation into Russian election meddling.
Since become a federal appeals judge, Kavanaugh has voted against the constitutionality of the Affordable Care Act and ruled in favor of the National Security Agency’s controversial phone surveillance program, which was curtailed by Congress amid criticism that it violated privacy rights.
A source familiar with Trump’s thinking told The News ahead of his announcement he didn’t expect Kavanaugh to be appointed, considering his record on opposing abortion rights was far spottier than that of other candidates.
“Social conservatives are putting a tremendous amount of pressure on the President not to pick Kavanaugh,” the source said.
Senate Democrats contended Kavanaugh is a danger in his own right.
“He could be the deciding vote in overturning Roe v. Wade, which is what President Trump said he wanted his new Supreme Court justice to do,” said Sen. Kirsten Gillibrand (D-N.Y.). “I urge all New Yorkers to raise their voices and join me in opposing him.”
New York’s Democratic gubernatorial candidates were united in their displeasure with Trump’s pick.
“Kavanaugh is an extreme conservative with a clear partisan record,” Gov. Cuomo said. “He would put our rights and democratic priorities in jeopardy, including the Affordable Care Act, protections for the environment, organized labor, LGBTQ rights and the protections of Roe v. Wade.”
Cynthia Nixon echoed Cuomo’s sentiment in a tweet: “With Donald Trump’s pick threatening to reverse #RoevWade, it’s more important than ever to fight back and enshrine abortion and access to contraception.”
Since the Starr investigation, Kavanaugh’s take on prosecuting Presidents appears to have changed, and that may have played part in Trump’s decision.
In a 2009 article, Kavanaugh argued strongly against “the indictment and trial of a sitting President,” saying such a process would “cripple the federal government” and render it “unable to function with credibility.” Trump — whose presidential campaign remains under investigation for possible collusion with the Russian government — is already facing calls for his impeachment from some congressional Democrats.
Kennedy, who will officially step down July 31, has served as a crucial swing vote for decades, serving as a mediator between the court’s four liberal and four conservative justices.
The Supreme Court will take a significant rightward turn politically if the Senate confirms Kavanaugh. With a 51-49 divide, Republicans can only afford to lose one vote without jeopardizing his appointment.
Kavanaugh is Trump’s second Supreme Court appointment, after he successfully nominated Justice Neil Gorsuch to the bench last April. The high court has made a number of rulings since Gorsuch’s appointment that have unsettled liberals, and experts say more such decisions are imminent if the Senate confirms Kavanaugh, whose relatively young age all but ensures he will spend several decades on the bench.
Senate Majority Leader Mitch McConnell has pledged to schedule confirmation hearings on Trump’s nominee before the congressional midterms in November.
Democrats have scolded McConnell over that promise, pointing out the hypocrisy in him now looking to rush a vote on a GOP-nominated pick even though he spent nearly a year blocking President Barack Obama’s Supreme Court nominee, Merrick Garland, because he was concerned about confirmation hearings being held too close to the 2016 election.
McConnell (R-Ky.) advised Trump against nominating Kavanaugh, saying his extensive paper trail of experience could allow Democrats to delay the process and ultimately block his nomination.
Nonetheless, McConnell praised Trump after his announcement.
“President Trump has made a superb choice,” McConnell said.
