President Donald Trump will nominate Judge Brett Kavanaugh to the Supreme Court.
Trump's announcement, in the East Room of the White House, came less than two weeks after Justice Anthony Kennedy announced that he will be retiring from the Supreme Court at the end of July.
In introducing him, Trump promoted Kavanaugh as having "impeccable credentials, unsurpassed qualifications, and a proven commitment to equal justice under the law."
Although Kennedy reportedly had been considering retirement for several years, 2018 was the year when he chose to do it — giving Trump the chance to name a second Supreme Court nominee in his second year in office.
Trump's presidency has been marked by the consistency with which he goes outside of governing norms or even the view of his party’s members in his decision-making. When it comes to judges, though, Trump has adhered strictly to putting forward nominees, particularly for appellate judgeships, that represent the desires of ideological conservatives — and often who are backed by the Federalist Society.
Along with White House Counsel Donald McGahn, it is Leonard Leo — the executive vice president of the Federalist Society — who has the president’s ear on nominations. Leo, as he did with now-Justice Neil Gorsuch’s nomination, has taken a leave of absence from the conservative legal group to help the White House with the Supreme Court nomination.
The possibility of having a steadfast conservative replace Kennedy, likely moving the court markedly to the right, has energized conservatives since the justice announced his retirement. Kennedy sided with the more liberal justices often enough in key cases — on abortion, affirmative action, and gay rights — that he was known as the swing-vote justice. Now, given recent trends, Chief Justice John Roberts — a solid conservative with institutional concerns — will become the court's center vote.
If confirmed, Kavanaugh would replace his former boss, Kennedy, on the court; he served as a law clerk for Kennedy from 1993 to 1994. A native Washingtonian, the 53-year-old has spent most of his career inside the Beltway. He doesn’t have a reputation as a right-wing ideologue, but he is conservative and has emerged as the leading conservative voice on a court where he routinely finds himself in the minority on big cases about the power of federal agencies, a subject that dominates the DC Circuit’s docket.
"I believe that an independent judiciary is the crown jewel of our constitutional republic," Kavanaugh said Monday night. "If confirmed by the Senate, I will keep an open mind in every case, and I will always strive to preserve the Constitution of the United States and the American rule of law."
In a section of his brief speech that is certain to lead to questions from the Senate Judiciary Committee, Kavanaugh briefly described his "straightforward" judicial philosophy. "A judge must be independent and must interpret the law, not make the law. A judge must interpret statutes as written. And a judge must interpret the Constitution as written, informed by history and tradition and precedent," Kavanaugh said.
Some Democrats said before Monday's announcement that they’ll oppose any nominee from Trump’s Supreme Court short list, but Kavanaugh’s nomination carries extra sting — he sits on the US Court of Appeals for the DC Circuit with Chief Judge Merrick Garland, who Republicans blocked from having a hearing when former president Barack Obama nominated him for the late justice Antonin Scalia’s seat in early 2016.
Kavanaugh’s nomination also comes as the White House continues to find itself under the cloud of special counsel Robert Mueller’s investigation into Russian interference in the 2016 election, and whether there was collusion with Trump’s campaign. Kavanaugh would bring first-hand experience with specially appointed prosecutors — he worked under former independent counsel Kenneth Starr in the mid-1990s on the investigations into former president Bill Clinton.
Kavanaugh has long been considered a frontrunner for a Supreme Court nomination under a Republican president, even before he was added to Trump’s short list in November. An alumnus of Yale Law School, Kavanaugh clerked for 3rd Circuit Judge Walter Stapleton and 9th Circuit Judge Alex Kozinski — Kozinski resigned in late 2017 after facing sexual misconduct allegations — before clerking for Kennedy. Kavanaugh spent five years working in the White House under former president George W. Bush before he was confirmed to the DC Circuit in 2006.
During his confirmation hearing in 2006, New York Sen. Chuck Schumer said that Kavanaugh’s senior posts in the White House and his involvement with the Starr report “feeds an impression of partisanship that is, to put it mildly, not ideal for a nominee to a critically important lifetime post as a neutral judge.” He was confirmed by a vote of 57 to 36, with Sens. Susan Collins and Lisa Murkowski — considered potentially vulnerable votes on the Republican side — supporting the nomination.
Kavanaugh is respected by judges appointed by presidents of both parties, however. As Above the Law’s David Lat recently pointed out, Kavanaugh is not only a top feeder for Supreme Court clerks, but his clerks have gone on to work for justices on both sides of the ideological spectrum.
The Republican base is expected to rally around Kavanaugh, but he’s had detractors on the far right. The Associated Press reported that Kentucky Sen. Rand Paul had told colleagues that he might not vote for Kavanaugh, pointing to his work in the Bush administration on issues related to executive privilege and whether documents should be disclosed to Congress. CNN reported that former Virginia attorney general Ken Cuccinelli said that Kavanaugh “looks, walks, and quacks like John Roberts,” referring to the chief justice who earned the ire of conservatives for his role in upholding the Affordable Care Act.
The process for replacing Kennedy began long before Kennedy traveled to the White House on June 27 to inform the president of his decision to step down.
On May 18, 2016, once Trump had become the presumptive Republican presidential nominee, he made a significant effort to assuage the concerns of conservatives by naming a list of potential Supreme Court nominees. The 11-person list was widely praised by conservatives — and expanded by 10 in September 2016, including then-Judge Gorsuch. After Trump nominated Gorsuch to the Supreme Court, he added another five names to the list in November 2017.
Among the 11 judges from the first list, Trump interviewed three for Kennedy’s seat, including one — Judge Thomas Hardiman of the US Court of Appeals for the 3rd Circuit — whom the president interviewed for the nomination that went to Gorsuch. The other two — Judges Raymond Kethledge and Joan Larsen — sit on the US Court of Appeals for the 6th Circuit. Kethledge has sat on the court since July 2008, but Trump had just nominated Larsen to that court in 2017.
Among the nine remaining names on the second list, Trump interviewed two — Sen. Mike Lee and Judge Amul Thapar, promoted last year from the district court to the 6th Circuit by Trump — for Kennedy’s seat. The final two interviewed — Judges Amy Coney Barrett and Brett Kavanaugh — came from the final list. Barrett had been a law professor at Notre Dame and was confirmed last year to the US Court of Appeals for the 7th Circuit. Kavanaugh sits on the US Court of Appeals for the DC Circuit and has done so for more than a decade.
Over the weekend, Trump said he had winnowed the list to four — reportedly Barrett, Hardiman, Kavanaugh, and Kethledge.
With a nominee in place, the next steps in the process will begin and the nomination will be formally sent to the Senate.
At the same time, Senate Judiciary Committee Chair Chuck Grassley already said he’s eager to move the process ahead quickly, saying he “look[s] forward” to holding a confirmation hearing for the nominee “in the weeks ahead.” In order to do so, the committee will need the nominee’s questionnaire — meaning that, with White House support, the nominee will have to fill out the extensive questionnaire.
Additionally, the nominee will meet with key senators — with a focus, at first, on members of the Judiciary Committee — to have one-on-one discussions. It was from these meetings, during Gorsuch’s nomination, that Sen. Richard Blumenthal of Connecticut said that Trump’s nominee had said Trump’s attacks on judges hearing the challenges to the original travel ban were “demoralizing.”
If the nomination proceeds as the White House aims, the hearings will take place over the summer and lead to a successful vote in the committee to advance the nomination to the full Senate.
At that point, the White House is hoping a majority vote of the full Senate in favor of confirmation will send Trump’s second nominee to the Supreme Court before its new term begins in October. It took approximately two months for Gorsuch to get confirmed.
Democrats already have made clear that they plan to center the future of abortion rights — particularly, Trump's stated opposition to Roe v. Wade, and the possibility that the court could revisit that ruling — in their uphill fight against the nomination.
Absent a break in the ranks among Republicans, though, there is no way for Democrats to block Trump’s nominee — Republicans voted to effectively eliminate the filibuster for Supreme Court nominees last year during the fight over Gorsuch’s nomination.
Senate Democrats and liberal advocacy groups nevertheless have been mobilizing to oppose Trump’s second Supreme Court nominee even before Kennedy announced his retirement. A judiciary-focused nonprofit launched this year called Demand Justice has said it is prepared to spend millions of dollars to fight Trump’s nominee, with ad buys targeting not only Senate Republicans, but also Democrats, who the group hopes will unanimously oppose Trump's nominee; three Democrats voted for Gorsuch last year.