(Bloomberg) — President Donald Trump said he would nominate Judge Brett Kavanaugh for a seat on the U.S. Supreme Court, a choice that could create the most conservative court in generations and threaten landmark rulings including the Roe v. Wade abortion-rights decision.
If confirmed by the Senate, Kavanaugh would fill the seat of retiring Justice Anthony Kennedy, a swing vote who sometimes sided with the court’s liberals in key cases. Trump wants to leave an enduring mark on the court, giving it a solid five-justice conservative majority for the foreseeable future.
“I do not ask about a nominee’s personal opinions,” Trump said Monday night. “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.”
Kavanaugh 53, is a judge on the U.S. Court of Appeals for the District of Columbia Circuit with a history in politics. Before he was nominated to the D.C. circuit by George W. Bush, he was the former president’s staff secretary and worked for Bush during the 2000 Florida vote recount. He also played a lead role in drafting Independent Counsel Kenneth Starr’s 1998 report on Bill Clinton. He is a Yale Law School graduate.
Trump made his decision on Sunday, according to White House officials, adding the determining factor was that Kavanaugh was the kind of judge read by other judges, and had a solid grounding in the legal philosophy known as strict constructionism.
On Friday, the president asked all four finalists for the Supreme Court seat, Kavanaugh, Raymond Kethledge, Amy Coney Barrett, and Thomas Hardiman — to write speeches for Monday night’s announcement, submit names of people they’d like to have attend the announcement, and to share background information, according to the White House officials, who asked for anonymity to discuss internal deliberations.
Two of the officials said the president would view Coney Barrett as a top contender if he has the opportunity to make a third Supreme Court nomination. They added that Trump repeatedly praised Hardiman, while Kethledge was ruled out because of rulings that immigration hardliners disliked.
Sunday Night Call
The president called Kavanaugh on Sunday night to tell him that he had been chosen. On Monday, he told Kennedy, who was traveling in Austria, one of the officials said.
On the appeals court, Kavanaugh has voted to strike down environmental regulations and said he would have overturned internet regulations issued while Barack Obama was president. He dissented from a ruling that let an undocumented immigrant teenager get an abortion while in federal custody.
Trump said that Kavanaugh has “impeccable credentials” and is “universally regarded as one of the finest and sharpest legal minds of our time.”
Kavanaugh, a former Kennedy clerk, said that he was “deeply honored” to replace the retiring justice.
“No president has ever consulted more widely, or talked with more people from more backgrounds to seek input about a Supreme Court nomination,” Kavanaugh said of Trump.
In addition to abortion, the court could shift to the right on the death penalty, racial discrimination, environmental law and gay rights, all areas where Kennedy at least sometimes joined the court’s liberal wing. Chief Justice John Roberts may now become the swing vote.
White House Legislative Affairs Director Marc Short said he expects Kavanaugh to be in place by Oct. 1, when the court’s next term formally opens, and Majority Leader Mitch McConnell has said the Senate will vote to confirm Kennedy’s successor in the fall. McConnell, who called Kavanaugh a “superb choice,” hasn’t explicitly said whether his goal is to complete a confirmation before the November midterm elections.
“This incredibly qualified nominee deserves a swift confirmation and robust bipartisan support,” Trump said.
Kennedy’s position in the court’s center guarantees a fierce confirmation fight. As soon as he announced his retirement plans in late June, Democrats and liberal groups mobilized, saying another Trump appointee would threaten Roe as well as the 2015 ruling that legalized same-sex marriage nationwide and scores of other decisions that have shaped modern America.
“President Trump has put reproductive rights and freedoms and health care protections for millions of Americans on the judicial chopping block,” Senate Democratic Leader Chuck Schumer said in a statement moments after Trump’s announcement. “His own writings make clear that he would rule against reproductive rights and freedoms, and that he would welcome challenges to the constitutionality of the Affordable Care Act.”
Schumer, of New York, said he would fight the nomination “with everything I have, and I hope a bipartisan majority will do the same.”
Senators Kamala Harris of California, Cory Booker of New Jersey, Richard Blumenthal of Connecticut, Jeff Merkley of Oregon, Bernie Sanders of Vermont and Elizabeth Warren of Massachusetts, all Democrats, said immediately after Trump’s announcement that they would also vote against Kavanaugh’s confirmation.
White House counsel Don McGahn, who oversaw Trump’s justice selection process, tried to contact all the Senate Judiciary Committee members during the process. Only Harris, who is thought to have presidential ambitions, declined to engage, according to one of the White House officials.
Republicans hold a 51-49 advantage in the Senate, so they can approve Trump’s nominee without any Democratic support as long as they don’t lose more than one vote. In confirming Trump’s first Supreme Court nominee Neil Gorsuch, Republicans eliminated the 60-vote requirement to advance a nomination to the high court.
A key Republican moderate, Susan Collins of Maine, said she will review the pick, but said Kavanaugh has “impressive credentials.”
The White House plans a robust promotional campaign on Kavanaugh’s behalf.
Vice President Mike Pence scheduled interviews Tuesday morning with local television and radio stations in states represented by Democrats that Trump won in 2016, one of the White House officials said. He plans to participate in an outreach call with White House allies, Kavanaugh’s introduction at McConnell’s office, a radio interview with conservative host Rush Limbaugh, lunch with Republican senators and two national television interviews, the official added.
Pence took an active role in the selection process, meeting with Kethledge and Barrett in Indiana on July 3 and with Kavanaugh in Washington on July 4, the official added.
Kavanaugh will begin individual meetings with senators this week, McConnell’s office said. The Judiciary Committee will announce a date for a confirmation hearing after reviewing Kavanaugh’s record.
Gorsuch’s nomination became possible because McConnell blocked Obama’s nomination of Merrick Garland to fill a vacancy in 2016. McConnell had said the winner of the presidential election should make the choice.
Trump vowed during the campaign to appoint justices who would vote to overturn Roe, the 1973 ruling that legalized abortion nationwide, and his appointment to replace Kennedy could make that a reality. Recently, he said he wouldn’t ask any potential nominees about Roe during interviews.
Kennedy cast the pivotal vote to uphold Roe in the 1992 Planned Parenthood v. Casey decision. The justices who remain on the court include three who have backed broad abortion restrictions and a fourth, Gorsuch, who in all likelihood would.
Senate confirmation of Kavanaugh could create the most conservative court since the justices blocked a number of President Franklin D. Roosevelt’s New Deal programs in the 1930s. It could also create a lasting majority. Thomas, at 70, is the oldest of the court’s remaining Republican appointees.
©2018 Bloomberg L.P.