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Trump Picks Conservative Judge For Supreme Court Opening


It has been called the nomination that will influence the Supreme Court for decades to come. President Trump has picked federal Judge Brett Kavanaugh to replace retiring Justice Anthony Kennedy. Kavanaugh's record on gun rights, abortion and presidential power suggests that, if he's confirmed, he will swing the court to the right.

Kavanaugh's name came to Trump through a list of candidates vetted by the Federalist Society. That's a network of conservative lawyers that works to recruit and install judges committed to a strict interpretation of the Constitution. Leonard Leo is with me now. He has advised President Trump on the president's judicial nominations, and he's served for years as the executive vice president of the Federalist Society.

Good morning, Mr. Leo.

LEONARD LEO: Good morning.

KING: All right. So you talked to President Trump about this decision. What do you think made Judge Kavanaugh stand out to him?

LEO: Well, the president has said time and again that he wants justices on the court who are extraordinarily well-qualified, who are not weak, in his words, which he means independent, courageous and fair. And also he wants judges who are going to apply the law as it's written - interpret the Constitution as it's written - and understand that, at the end of the day, if you want to protect the dignity and freedom of all people, you have to enforce and respect the limits on government power contained in the Constitution.

KING: Judge Kavanaugh has also, interestingly, written in the past that he thinks a president should be exempted from criminal prosecution and investigation. Did you talk to President Trump about that?

LEO: I didn't, but I did look at the materials that Judge Kavanaugh has written on that subject. And I think what you see there is basically a concern that any government official with prosecutorial power or otherwise needs to be accountable and transparent. And that's one of the debates we've had about independent counsels and special prosecutors over the years. How do we make sure that they get their job done but at the same time they have accountability and transparency and that the enormous power they have is used responsibly?

KING: Well, I've got to ask you - given that Judge Kavanaugh has written, presidents should be exempted from criminal prosecution and investigation - given where we stand in 2018, do you think that played a role in the president's decision?

LEO: Well, I don't think so. I think that, overall, the president wants someone who understands that limits on government power and accountability of government officials is important. But there's no one issue that I think drives a president's decision, this president or any other. It's about overall judicial philosophy and character for most presidents.

KING: You were also influential in the nominations of Justices John Roberts, Samuel Alito and Neil Gorsuch. How do these men - and Brett Kavanaugh now - fit in with what you want to see from the U.S. judiciary?

LEO: Well, I think it's important to remember that what makes a judge most fair is what we mentioned before - the idea that a judge should interpret the laws as it's written; should apply the original meaning of the Constitution because, at the end of the day, judges wear black robes to symbolize the fact that they shed their own personal predispositions and that what they should be doing is calling the law the way it's written. And so that's really what I think any good president ought to be looking for in a judge.

KING: You say you promote judges who believe in the Constitution as it is written. I'm sure you're aware of this. You have many critics who say that is a cover for a conservative political agenda. Does cultivating judges who align with a political agenda conflict with the idea of judicial independence?

LEO: One of the great things about Judge Kavanaugh and a number of the other finalists that President Trump considered is that their writings evidence a desire to keep politics out of the courts. There's no surefire way to do that. But I think the best way to do it is to make sure that judges stick to text, history, original meaning and also, you know, respect and grapple with precedent. I think that's the way we try to avoid political intrusions into the justice system.

KING: Now let's talk a little bit about precedent. Edward Whelan, who is a prominent conservative legal activist, has written, (reading) no one has been more dedicated to the enterprise of building a Supreme Court that will overturn Roe v. Wade than the Federalist Society's Leonard Leo. Is he right about that?

LEO: (Laughter) I doubt that he is. But...


LEO: But here's the bottom line. You know, the conservative legal movement doesn't believe in an outcome-driven approach to judicial decision-making.

KING: It doesn't?

LEO: No, it doesn't. I mean, there may be people who, in their personal lives, oppose or favor abortion, oppose or favor gun rights. But at the end of the day, it's very dangerous to have a court that's outcome-driven. What you really want are judges who are going to take a case, look at it fairly at the very beginning, consider precedent, history, tradition, the language of Constitution and make an independent and fair decision. And that's what I and, I think, many others in the conservative legal movement believe in. And I know that that's what President Trump was looking for.

KING: Leonard Leo advised President Trump on his judicial nominations.

Thank you, sir.

LEO: Thank you very much. Transcript provided by NPR, Copyright NPR.

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