WASHINGTON (TNS) — In choosing Judge Brett M. Kavanaugh for the Supreme Court, President Donald Trump went with a well-credentialed Washington insider who compiled a long record as a reliable conservative and won the respect of White House lawyers and the outside groups that advise them.
They are confident that, if confirmed by the Senate, he will move the high court to the right on abortion, gun rights, affirmative action, religious liberty and environmental protection, among other issues.
But his court record and his status as a Beltway insider could also pose problems as the 53-year-old judge on U.S. Court of Appeals for the District of Columbia Circuit seeks to move a few blocks up Capitol Hill to replace Justice Anthony M. Kennedy, for whom he worked as a law clerk from 1993 to 1994.
In the late 1990s, Kavanaugh played a lead role in the aggressive investigation of President Bill Clinton led by independent counsel Kenneth W. Starr. He was an author of the Starr Report, which urged the House to impeach the president for lying about a sexual affair with White House intern Monica Lewinsky.
Senate Democrats are sure to press Kavanaugh to explain his views on investigating and impeaching a president based on allegations of lies and a cover-up, something that could prove uncomfortable for Trump given the investigation underway by special counsel Robert S. Mueller III.
A graduate of Yale University and Yale Law School, Kavanaugh — the only one of Trump's four finalists who has an Ivy League degree — will be in good company on a court where all the current justices have gone to law school at Harvard or Yale. Last year, Trump said he was drawn to his first appointee, Justice Neil M. Gorsuch, because he had degrees from Columbia, Harvard and Oxford.
Some conservative activists in recent days had launched a campaign against Kavanaugh, complaining about his past ties to the George W. Bush administration and previous rulings that were not hard-line enough for their taste. Many preferred one of the candidates who had worked outside Washington, despite their less sterling resumes. The other finalists, also federal appeals court judges, were Amy Coney Barrett of Indiana, Thomas Hardiman of Pennsylvania and Raymond Kethledge of Michigan.
But lawyers who have worked with Kavanaugh are confident he will be boldly conservative.
"Brett Kavanaugh is courageous, tough and defiant. He will never, ever go wobbly," said Justin Walker, a University of Louisville law professor who worked as law clerk for both Kavanaugh and Justice Kennedy. "I predict that he would be a rock-solid conservative in the Alito-Thomas mold," he said, referring to Justices Samuel A. Alito Jr. and Clarence Thomas.
The announcement comes just 12 days after Kennedy, 81 — the court's influential swing vote for decades — said he would step down, opening the door for a Republican president to appoint a more reliable conservative who could shift the court to the right for a generation or more and potentially overturn or limit the landmark abortion ruling Roe vs. Wade.
Trump and the Republican-controlled Senate are wasting no time, just in case Democrats take over the chamber in the midterm election. They are also hoping that completing Trump's second high court appointment will energize GOP voters in November.
Trump had been teasing about his choice for days, urging supporters to tune in Monday night and building suspense by suggesting he would wait until the final hours to decide. The big reveal, as they say in the reality-television industry, came during a prime-time announcement in the White House East Room.
Several of the senators thought to hold key votes on the confirmation, including Sens. Susan Collins, R-Maine, and Heidi Heitkamp, D-N.D., declined White House invitations Monday to attend the announcement.
The Supreme Court selection is yet another staid Washington ritual transformed by Trump, who learned the narrative power of reality TV while hosting NBC's "The Apprentice." Trump staged a similar event early last year when he nominated Gorsuch to replace deceased Justice Antonin Scalia, whose seat opened during President Barack Obama's final year in office but was held open by a GOP-controlled Senate that refused to consider Obama's nominee.
Trump has delighted in choosing judges, an issue that unites conservative groups, including some that have been skeptical of either his personal behavior or his policy positions, for example on trade and other economic issues.
But Kavanaugh's long record in Washington will give Senate Democrats plenty of material to press at his confirmation hearing.
During Starr's probe, Kavanaugh took on the task of re-examining the suicide of Vince Foster, a deputy White House counsel and close friend of Bill and Hillary Clinton who had come under fierce attack in the conservative media. Kavanaugh tried and failed to persuade the Supreme Court to force Foster's lawyer to turn over notes from a private conversation shortly before his death. The justices refused to waive the attorney's duty of confidentiality because his client had died.
Years later Kavanaugh changed his mind about his role in the Starr investigation and said presidential investigations were harmful to the country.
In December 2000, with the presidential race between Al Gore and George W. Bush undecided, Kavanaugh joined the Republican legal team fighting to stop the ballot recount in Florida. The Supreme Court did just that by a 5-4 vote in the Bush vs. Gore case, clearing the way for Bush to be declared the victor.
Kavanaugh took a post in the White House counsel's office under President George W. Bush and later served as his staff secretary. Bush nominated him to the U.S. Court of Appeals for the District of Columbia Circuit in 2003, but because of strong opposition from Democrats, he was not confirmed until 2006.
Since then, he has written about 300 opinions and compiled a solidly conservative record on a court that has a steady diet of dense regulatory disputes. Kavanaugh was skeptical of several of the Obama administration's environmental regulations, including efforts to limit greenhouse gases and hazardous air pollutants.
And he dissented in 2015 when the appeals court upheld a revised regulation under the Affordable Care Act involving contraceptives. Although religious employers did not have to provide or pay for the disputed contraceptives, they were required to file a form notifying the government that they were opting out. Dissenting in Priests for Life vs. U.S. Department of Health and Human Services, Kavanaugh said that filing the form would make them complicit, and therefore, would violate their rights to religious freedom.
Kavanaugh appears to support broader gun rights under the Second Amendment. In 2011, he filed a 52-page dissent when the appeals court, by a 2-1 vote, upheld a District of Columbia ordinance that prohibited semiautomatic rifles and magazines holding more than 10 rounds. The judges in the majority, both Republican appointees, noted that several large states, including California and New York, enforced similar laws.
But Kavanaugh said the ban on semiautomatic rifles was unconstitutional because the weapons are in common use in this country. "As one who was born here, grew up in this community in the late 1960s, 1970s and 1980s, and has lived and worked in this area almost all of his life, I am acutely aware of the gun, drug and gang violence that has plagued all of us. ... But our task is to apply the Constitution and the precedents of the Supreme Court, regardless of whether the result is one we agree with as a matter of first principles or policy," he wrote.
Since the Supreme Court in 2008 established a Second Amendment right for individuals to have a gun at home, the justices have refused to hear a Second Amendment challenge to state laws or local ordinances that restrict the sale of semiautomatic weapons.
Kavanaugh's long record as a judge has left him open to attack from the right as well as the left.
In 2011, when Obama's health care law was under assault, Kavanaugh dissented when a D.C. Circuit Court panel upheld the law, but only on procedural grounds. He cited the Tax Injunction Act, which said judges should not decide suits challenging a tax provision until the plaintiff has first paid the tax. His view, if upheld, would have delayed a constitutional challenge to the law, and some on the right faulted him for not simply declaring the law unconstitutional.
Kavanaugh was one of the last additions to a list of potential GOP nominees, updated last year to 25 names from the initial 11, that was assembled and vetted by the Federalist Society and the Heritage Foundation, outside conservative groups with tremendous influence in the Trump White House.