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Kavanaugh Pick Shows Trump Bowing Again To The GOP Legal Establishment

Many considered Brett Kavanaugh the front-runner to replace Justice Anthony Kennedy, even before Kennedy announced his retirement. Despite his credentials, Kavanaugh still met resistance within Trump world.
Mandel Ngan
AFP/Getty Images
Many considered Brett Kavanaugh the front-runner to replace Justice Anthony Kennedy, even before Kennedy announced his retirement. Despite his credentials, Kavanaugh still met resistance within Trump world.

In the end, after days of highly dramatized deliberation, President Trump had to choose. He had to choose not only between several possible nominees for the Supreme Court, but also between categories of advisers.

In this case, he chose to listen to his lawyers rather than his talk show hosts. And he did not seem overly concerned about the warning Senate Majority Leader Mitch McConnell had issued over the weekend about which prospective nominees would be easiest to get confirmed.

The man the president finally summoned to the stage in the East Room of the White House on Monday night was Brett Kavanaugh, whom many considered the front-runner to replace Justice Anthony Kennedy even before Kennedy had announced his retirement. Kavanaugh was once a clerk for Kennedy, overlapping briefly with Neil Gorsuch, the man President Trump made his first choice for the Supreme Court last year.

This time around, Kavanaugh was the lead horse, the candidate with the glittering resume and the inside track. As a double Yalie, he would keep intact the current domination of the court by just two law schools: Harvard and Yale (Gorsuch went to Harvard). He also has the longest and most distinguished record of service as a federal appellate judge among the four finalists announced by the White House.

Kavanaugh has written a lot of important decisions, because he serves on the U.S. Court of Appeals for the District of Columbia Circuit, often called "the Little Supreme Court" for its docket of administrative and constitutional cases and its history of sending its alumni to the high court across the street from the Capitol.

All this mattered to the man who has run the vetting process for Trump's judicial nominees, White House Counsel Don McGahn, who was joined by other prominent legal minds within the GOP. They led the president to follow once again the conventional script for appointing conservative Republicans to the Supreme Court, finding the name on his famous list of 25 that pleased him while checking off the maximum number of boxes.

The list, of course, came from the Federalist Society and its leader, Leonard Leo, with input from other conservative organizations. It played an enormous role in Trump's 2016 election, reassuring a whole category of religious conservatives that Trump would appoint a court that would overturn Roe v. Wade and do it "automatically," as he promised in his third presidential debate against Hillary Clinton.

Yet in Kavanaugh, Trump chose someone who might well have been chosen by President George W. Bush (for whom Kavanaugh worked as staff secretary in the White House, helping to choose his Supreme Court nominees) or by the elder President Bush, or Ronald Reagan. Trump even paid homage to Reagan in his introductory remarks, saluting the Gipper for putting Kennedy on the court three decades ago.

With all these credentials, Kavanaugh still met resistance within Trump world. Longtime association with the Bush family is not generally a plus in the president's realm, nor is the sense that Kavanaugh might surprise once he has reached the ultimate level of independence on the court.

Critics have complained that the hundreds of thousands of pages and emails and everything else Kavanaugh has produced will slow the confirmation process and perhaps complicate the vote.

Besides, Kavanaugh was not the exciting, breakout, populist, anti-establishment pick some on the right had wanted and expected. When presented with a chance to vote against Obamacare from his perch on the appeals court a few years ago Kavanaugh chose an "off-ramp" to avoid a strong opinion. When he was a prosecutor working for independent counsel Ken Starr in the late 1990s, he concluded that former White House counsel Vince Foster had not been murdered (as countless conspiracy theorists maintained). And there are surely other jurists out there who have worked harder to establish their bona fides with the far right.

Moreover, there were boomlets in the last few days for other prospective nominees. Thomas Hardiman of the Pennsylvania Circuit, the runner-up to Gorsuch, was still presumed the favorite of his former colleague Maryanne Trump Barry, the president's sister. And Raymond Kethledge of Michigan was, with Hardiman, one of the two prospects McConnell thought it would be easiest to confirm.

So there was uncertainty right up until curtain time at the White House on Monday night, the culmination of the latest production by Trump the Showman. Given a rather predictable nominee to present, Trump managed through days of interviewing and sending mixed signals to create an atmosphere of suspense.

Remarkably, the usually leaky White House operation managed to preserve The Secret right up to the moment of The Big Reveal at 9 p.m., allowing speculation and campaigning and contesting of the nomination throughout the final day.

That meant cable TV and Twitter were teeming with such prominent and influential talk show personalities as radio host Steve Deace in Iowa and Sean Hannity on Fox News, voicing their fervent support for Amy Coney Barrett, an Indianan serving on the U.S. Circuit Court of Appeals in Chicago.

Conservative media stars such as Erick Erickson, former CEO of RedState.com, were rhapsodizing about what a Barrett pick would mean to them. Erickson, who has been hot and cold on Trump, said he'd vote for him in 2020 "despite the tariffs" and other disagreements if the president opted for the former Notre Dame law professor, who has become something of a Joan of Arc for social and religious conservatives.

Hannity, who communicates with the president daily and seems at times his alter ego, also made no secret of his preference for Barrett. So he may have been giving a little bit away when he appeared on Fox's The Five on Monday evening. Hannity told Fox viewers to close their eyes just before Trump revealed his choice so they could imagine who the new justice might be if Hillary Clinton were president.

In other words, anyone on the Trump short list would be great by comparison to any Clinton pick. It sounded as though Hannity wasn't really expecting his own first choice to win.

Of course, by the time Kavanaugh was official and the reactions were pouring in, the Barrett fans were mostly climbing on board — despite their earlier reservations.

They really had little choice. The atmosphere in the East Room of the White House on Monday night was celebratory and relieved. Trump himself delivered a brief tribute to Justice Kennedy, and well he might. For by retiring just now, Kennedy has given the president the ultimate political gift — the chance to change the subject, reprise his Greatest Hit (the Gorsuch nomination) and shape the political debate in the months leading into the November midterm elections.

Not so long ago, Trump and the GOP had hoped to ride their tax bill to popularity this year. But the public has remained largely indifferent (or even hostile) to their signature legislation. Trump's get-tough tariff regime has induced anxiety among farmers and manufacturers and may soon worry workers as well. The "zero tolerance" policy at the southern border has produced heart-rending visuals and a genuine crisis over families of asylum seekers separated and imprisoned.

The crown jewel of a peace process with North Korea seems to be falling apart before actually achieving anything for the U.S. And the investigation into Russian interference in the 2016 election continues apace, with 19 indictments so far and Trump's former campaign manager sitting in jail awaiting trial.

Yet now, with the Kavanaugh confirmation process underway, Trump can hearken back to Gorsuch. No other action Trump has taken to date has so consistently pleased his base, the party and the broader conservative movement.

As to resistance from the other side of the political aisle, the objections from Democrats and their constituency groups arrived at least as fast as the praise from the right. But in the end, having some of the talk show hosts and other firebrands a little disappointed by the pick may help Trump and McConnell prevail.

Having chosen a candidate who will unite nearly all conservatives, Trump and McConnell can now focus on winning over a few Democrats. And Kavanaugh is not a naturally divisive personality, but a rather personable and presentable fellow with many friends, a charming family and a lifelong active church life. (Like the other three finalists, he is a Catholic.)

Some Democrats will still see Kavanaugh as they did a decade or so ago, as a combatant in some of the worst moments of partisan warfare in recent decades. He was a lawyer in the Bush v. Gore case that decided the 2000 election, and before that, a lawyer with the investigation that led to the impeachment of President Bill Clinton in 1998.

When Bush first appointed Kavanaugh to the federal bench, the Democrats held up his nomination for years. Sen. Charles Schumer of New York said naming Kavanaugh to the bench wasn't just "throwing salt in the wound, it was throwing in the whole shaker." Kavanaugh was re-appointed in 2006 and confirmed.

In those days, we should note, the minority party could filibuster or threaten to filibuster a presidential nominee. That ended when the Democrats, as the majority, decided to eliminate the filibuster on presidential nominees for all but the Supreme Court. In 2017, McConnell killed the filibuster for Supreme Court nominations as well. Thus Gorsuch was confirmed with 54 votes, and Kavanaugh can be confirmed with as few as 50.

Schumer has said he will again oppose Kavanaugh "with everything I have." But he does not seem to have much at this point, barring a defection from the GOP side. Kavanaugh has not said or written anything showing "hostility" to Roe v. Wade, which was the line drawn in the sand by Sen. Susan Collins of Maine, one of two Senate Republicans to have defended abortion rights. But as a name on the list of 25 from the Federalist Society touted by Trump in 2016, he would have to have impressed some experts as a jurist who might well overturn Roe.

Kavanaugh will also have to survive the kind of high-stakes grilling meted out in the Senate Judiciary Committee, which he has not faced in a number of years.

On the other hand, Kavanaugh will probably have some appeal to at least a few of the 10 Democrats running for Senate re-election this fall in states that voted for Trump. That, and a united Republican Party, should ease his way to the bench in time for the next term to begin Oct. 1.

Copyright 2021 NPR. To see more, visit https://www.npr.org.

Ron Elving is Senior Editor and Correspondent on the Washington Desk for NPR News, where he is frequently heard as a news analyst and writes regularly for NPR.org.
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