President Donald Trump has nominated Judge Brett Kavanaugh for the Supreme Court, the president announced on Monday night.
Top contenders for the role have included federal appeals judges Kavanaugh, Raymond Kethledge, Amy Coney Barrett and Thomas Hardiman.
A favorite of the Republican legal establishment in Washington, Kavanaugh, 53, is a former law clerk for retiring Justice Anthony Kennedy. Like Trump’s first nominee last year, Justice Neil Gorsuch, Kavanaugh would be a young addition who could help remake the court for decades to come with rulings that could restrict abortion, expand gun rights and roll back key parts of Obamacare.
“He is a brilliant jurist, with a clear and effective writing style, universally regarded as one of the finest and sharpest legal minds of our time,” Trump said in his prime-time televised White House announcement. He added: “There is no one in America more qualified for this position, and no one more deserving.”
With Kavanaugh, Trump is replacing a swing vote on the nine-member court with a staunch conservative. Kavanaugh, who serves on the Court of Appeals for the D.C. Circuit, is expected to be less receptive to abortion and gay rights than Kennedy was. He also has taken an expansive view of executive power and has favored limits on investigating the president.
Speaking at the White House, Kavanaugh pledged to preserve the Constitution and said that “a judge must be independent and must interpret the law, not make the law. A judge must interpret the Constitution as written.”
A senior White House official said Trump made his final decision on the nomination Sunday evening, then phoned Kavanaugh to inform him. The official said Trump decided on Kavanaugh because of his large body of jurisprudence cited by other courts, describing him as a judge that other judges read.
On Monday, Trump phoned retiring Justice Kennedy to inform him that his former law clerk would be nominated to fill his seat. Trump signed Kavanaugh’s nomination papers Monday evening in the White House residence.
Some conservatives have expressed concerns about Kavanaugh, questioning his commitment to social issues like abortion and noting his time serving under President George W. Bush as evidence he is a more establishment choice. But his supporters have cited his experience and wide range of legal opinions.
With Democrats determined to vigorously oppose Trump’s choice, the Senate confirmation battle is expected to dominate the months leading up to November’s midterm elections. Senate Republicans hold only a 51-49 majority, leaving them hardly any margin if Democrats hold the line. Democratic senators running for re-election in states Trump carried in 2016 will face pressure to back his nominee.
Here is more background on Kavanaugh:
Here is reaction from U.S. Sen. Kamala Harris (D-California):
“The Supreme Court has a profound impact on the rights—and lives—of all Americans. When at its best, it has advanced the meaning of those words above its doors, ‘Equal Justice Under Law.’ At its worst, the Supreme Court has upheld racial segregation, enabled voter suppression, and equated corporations with people. Whether or a not the Supreme Court enforces the spirit of those words, ‘Equal Justice Under Law,’ is determined by the individuals who sit on that Court.
“Judge Brett Kavanaugh represents a direct and fundamental threat to that promise of equality and so I will oppose his nomination to the Supreme Court. Specifically, as a replacement for Justice Anthony Kennedy, his nomination presents an existential threat to the health care of hundreds of millions of Americans.
“During the 2016 presidential campaign, President Trump made clear that he had a litmus test for Supreme Court Justices—overturn Roe v. Wade and oppose a woman’s constitutionally-protected right to make her own health care decisions. The President then released a list of nominees who had been vetted to meet that test. Judge Kavanaugh is on that list.
“Judge Kavanaugh has consistently proven to be a conservative ideologue instead of a mainstream jurist. As recently as last year, he disregarded Supreme Court precedent and opposed the health care rights of a vulnerable young woman. That ruling was overturned by a sitting of all the judges on his court. In 2015, Kavanaugh wrote that an employer, based on their personal beliefs, can deny their employee access to birth control coverage.
“I know personally just how consequential this seat on the Supreme Court is. Almost two decades after the Supreme Court’s landmark ruling in Brown v. Board of Education, I was part of only the second class to integrate the Berkeley, California public schools. If that Court had not issued that unanimous opinion led by Chief Justice Earl Warren in that case argued by Thurgood Marshall, I likely would not have become a lawyer, or a prosecutor, or a been elected district attorney, or the Attorney General of California. And I certainly would not have become a United States Senator.
“That’s the power an individual Supreme Court Justice holds. Those are the stakes of this nomination. We must demand a mainstream jurist worthy of our great country.”
And here is a statement from the Democratic National Convention:
“Judge Kavanaugh should not be allowed anywhere near our nation’s highest bench. Let’s be clear: a vote for Kavanaugh would be a vote to rip health care from American families and deny women their constitutional right to make their own health care decisions.
“We know exactly why Kavanaugh was chosen. President Trump himself said that overturning Roe v. Wade and gutting the Affordable Care Act would be litmus tests for his Supreme Court nominee, and Kavanaugh fits the script. He’s suggested a future president could refuse to enforce the Affordable Care Act, even if it was upheld by the Supreme Court. And he dissented from a ruling that upheld the constitutionality of the Affordable Care Act’s birth control benefit.
“Majorities of Americans support Roe v. Wade and want to protect the Affordable Care Act. So President Trump and Judge Kavanaugh don’t just stand in opposition to democratic principles, they stand against the American people. If confirmed, Kavanaugh would threaten women’s rights, workers’ rights, civil rights, and voting rights for generations to come. Immigrants, LGBTQ Americans, people of color, and people with disabilities would be pushed further to the margins. And wealthy corporations and polluters would gain yet another powerful protector.
“Our Supreme Court must always protect people’s constitutional rights and serve as a check on the powers of the executive branch. By picking Kavanaugh, who has expressed his disturbing views of presidential power, Trump is attempting to turn our highest judicial institution into a rubber stamp for right-wing Republican ideology. Kavanaugh is unacceptable, and any senator who cares about the rights and dignity of the American people should oppose his confirmation.
“We blocked health care repeal last year because Americans came together, spoke out, and held Republican senators accountable. The only way to stop this nomination now is to fight again. Call your senator and vote in November. Democrats must make our voices heard at the ballot box for the millions of American families who are counting on us.”.
Here is a statement from U.S. Sen. Dianne Feinstein (D-California):
“President Trump has been crystal clear about his litmus tests for Supreme Court nominees. He said that they would be ‘pro-gun’ and Roe v. Wade would be overturned ‘automatically.’ The White House also made clear his candidates would oppose actions to protect worker safety and ensure clean air and water. To guarantee potential candidates met these tests, a list of 25 possible nominees was created by ideological right-wing groups.
“Unfortunately, Brett Kavanaugh appears to meet all of President Trump’s political promises for how his candidate will rule on specific issues. Kavanaugh’s record on the bench, in key political positions in the Bush White House and as a partisan political operative indicates that if confirmed he would be among the most conservative justices in Supreme Court history.
“His views are far outside the legal mainstream when it comes to access to health care, executive power, gun safety, worker protections, women’s reproductive freedom, and the government’s ability to ensure clean air and water, to name a few.
“Specifically, Judge Kavanaugh’s strong opposition to commonsense gun safety laws showcases how extreme his views are. Even though five circuit courts of appeals have upheld bans against assault weapons, he voted in 2011 against Washington, D.C.’s ban on assault weapons and high-capacity magazines. He argued that the District could not consider benefits to public safety when banning assault weapons like AR-15s. He also argued that because such weapons were in ‘common use’ they could not be banned.
“We need a nominee who understands that the court is there to protect the rights of all Americans, not just political interest groups and the powerful.”
Planned Parenthood of Northern California had this statement:
“The right to access abortion safely and legally in this country is on the line. If the Senate does not intervene, the balance of the court will turn against the constitutional right to abortion and the right to be free from discrimination in this country. We cannot allow our daughters and granddaughters to have fewer rights than we do. Abortion has been legal in this country for more than 40 years — most women today have only known a country where they have the right to access abortion. Brett Kavanaugh cannot be trusted to respect the precedent on individual liberty, including the right to access contraception and birth control. During his time on the D.C. Circuit, he blocked a woman from exercising her right to abortion and would have allowed women’s bosses to deny them no-copay birth control coverage. Kavanaugh is an active member of the Federalist Society, a group devoted to appointing extremist judges to the bench who will not follow legal precedent when it comes to safe and legal abortion.”
The White House invited a number of senators to attend the Monday night announcement. Democrats who were invited but declined included Sens. Joe Donnelly of Indiana, Heidi Heitkamp of North Dakota, Doug Jones of Alabama, Joe Manchin of West Virginia and Dianne Feinstein of California. Feinstein is the ranking Democrat on the Judiciary Committee. The others are Republican targets for the confirmation vote who come from Trump-won states where they face re-election this fall.
Democrats have turned their attention to pressuring two Republicans, Sens. Susan Collins of Maine and Lisa Murkowski of Alaska, to oppose any nominee who threatens Roe v. Wade. The two have supported access to abortion services.
Senate Majority Leader Mitch McConnell says that Judge Kavanaugh is a “superb” Supreme Court pick and that senators should “put partisanship aside” in considering him.
Democrats are already lining up against Kavanaugh as too conservative. But McConnell says senators should give him “the fairness, respect, and seriousness that a Supreme Court nomination ought to command.”
McConnell says Kavanaugh believes judges should ignore their personal and political views and simply “interpret our laws as they are written.”
The Kentucky Republican faces a challenge in winning Kavanaugh’s confirmation.
Republicans hold a mere 50-49 Senate majority, with the prolonged absence of the ailing Arizona GOP Sen. John McCain.
The defection of one Republican would kill the nomination unless at least one Democrat votes yes.
Kavanaugh is likely to be more conservative than Justice Kennedy on a range of social issues. At the top of that list is abortion. A more conservative majority could be more willing to uphold state restrictions on abortion, if not overturn the 45-year-old landmark Roe v. Wade decision that established a woman’s constitutional right.
Kennedy’s replacement also could be more willing to allow states to carry out executions and could support undoing earlier court holdings in the areas of racial discrimination in housing and the workplace. Kennedy provided a decisive vote in 2015 on an important fair housing case.
Like the other eight justices on the court, Kavanaugh has an Ivy League law degree, spending his undergraduate and law school years at Yale. Since 2006, he has been a judge on the federal appeals court in Washington. He also was a key aide to Kenneth Starr during Starr’s investigation of President Bill Clinton, worked on behalf of George W. Bush’s campaign during the election recount in 2000 and served in the Bush White House.
Kavanaugh’s many written opinions provide insight into his thinking and also will be fodder for Senate Democrats who will seek to block his confirmation. He has written roughly 300 opinions as a judge, authored several law journal articles, regularly taught law school classes and spoken frequently in public.
Kavanaugh’s views on presidential power and abortion are expected to draw particular attention in his confirmation hearing. Drawing on his experience working on the Clinton investigation and then in the Bush White House, he wrote in a 2009 law review article that he favored exempting presidents from facing both civil suits and criminal investigations, including indictment, while in office. That view has particular relevance as special counsel Robert Mueller is looking into Russian meddling in the 2016 election and whether the Trump campaign played any role in a foreign interference plot.
On abortion, Kavanaugh voted in October to delay an abortion for a teenage immigrant who was in government custody. The court’s ruling in her favor was based on a constitutional principle, he wrote, “as novel as it is wrong: a new right for unlawful immigrant minors in U.S. Government detention to obtain immediate abortion on demand.”
Trump’s success in confirming conservative judges, as well as a Supreme Court justice, has cheered Republicans amid concerns about his limited policy achievements and chaotic management style. Of the court’s liberal justices, Ruth Bader Ginsburg is 85 and Stephen Breyer turns 80 next month, so Trump may well get another opportunity to cement conservative dominance of the court for years to come.