Why Donald Trump Nominated Brett Kavanaugh to the Supreme Court
Donald Trump walked into the East Room of the White House alone at just past 9 P.M., stretching the suspense surrounding his Supreme Court pick about as far as he could. It was Judge Brett Kavanaugh, of the Court of Appeals for the District of Columbia Circuit, who, if confirmed, should in the years to come please conservatives of several varieties—but first Trump wanted to talk about Trump for a few minutes. Choosing a Supreme Court Justice was “one of the most profound responsibilities of the President of the United States,” the most important “other than matters of war and peace.” He paused to congratulate himself for choosing Neil Gorsuch, last year, to fill the seat that opened when “the late, great Justice Antonin Scalia” died (and, though Trump didn’t mention it, was kept open through the machinations of Senate Majority Leader Mitch McConnell); to acknowledge Scalia’s widow, Maureen, who was in the crowd; to thank Justice Anthony Kennedy for retiring; and to invoke Ronald Reagan while offering a line that, when it comes to today’s Supreme Court, can only be called an utter falsehood: “What matters is not a judge’s political views.”
Kavanaugh’s politics matter, in terms of his appointment. His name was on a list of potential nominees, vetted by the Federalist Society, that Trump had waved in front of conservative groups, promising that he wouldn’t let them down—that he’d swap Kennedy’s swing vote for a reliable one. This was the sham behind the drumbeat of suspense: some people might have been rooting for, say, Judge Amy Coney Barrett or Judge Thomas Hardiman, but there never was going to be a true stealth candidate in this race, let alone an ideological outlier. (Jeffrey Toobin has written about how the list came to be.) And, assuming that Kavanaugh takes the bench this fall, when he will be just fifty-three years old, his political views will matter for decades to come.
It is a decent bet that he will be on the Court, despite the outrage of the Democrats and the slimness of the Republican majority in the Senate (just fifty to forty-nine, assuming that John McCain is too ill to travel for a vote). After Kavanaugh walked into the East Room with his wife, Ashley, and his young daughters, Margaret and Liza, and Trump, in lieu of a fanfare, recited his credentials (“teaches at Harvard, Yale, and Georgetown!”), the judge gave what sounded like the opening statement in a confirmation hearing. He was proud that the majority of his clerks have been women, and that his daughter’s basketball team had won a city championship; he would uphold the independence of the judiciary and interpret the Constitution “as written, informed by history, and tradition, and precedent.” What that means, though, is not much of a mystery, because Kavanaugh, who has been a federal appeals-court judge for a decade, has written plenty himself.
He has a strong record of ruling against regulations, notably environmental ones. His position opposing gun control goes significantly beyond an embrace of the Court’s controversial ruling, in Heller, that there is an individual right to bear arms—those whom Trump calls the “Second Amendment people” can rest easy with Kavanaugh. And recently Kavanaugh ruled, in the case of Garza v. Hargan, with the minority in favor of the Trump Administration and against an undocumented minor who was trying to get an abortion in Texas. Some conservatives worried that his decision didn’t come down strongly enough against reproductive rights. Kavanaugh presented himself as being constrained by the government’s failure to contest the premise that the girl had a theoretical right to an abortion, but he was also willing to let the government make it prohibitively difficult, if not impossible, for her actually to get one. In this, he embodies what is likely the near future of reproductive-rights jurisprudence: the stretching into meaninglessness of the standard, laid out in the Supreme Court decisions following Roe v. Wade, that the government should not put an “undue burden” on a woman when she seeks to exercise her right to end an early pregnancy. (The next-near future may simply be the overturning of Roe.)
In Garza, Kavanaugh wrote that the majority decision had been “based on a constitutional principle as novel as it is wrong: a new right for unlawful immigrant minors in U.S. Government detention to obtain immediate abortion on demand, thereby barring any Government efforts to expeditiously transfer the minors to their immigration sponsors before they make that momentous life decision.” In that passage, one can see how tightly interwoven political and judicial priorities can become, from the question of what rights an undocumented child can expect to the judgment in the phrase “abortion on demand” and the idea that a teen-age girl—any girl, and maybe any woman—might not know how to make a “momentous life decision” if left to her own devices.
In the East Room, Kavanaugh worked to counter any alarm that his record might awaken. He talked about how his mother, Martha Kavanaugh, had been a teacher at two high schools with mostly African-American student bodies, before becoming a lawyer and a prosecutor. He mentioned that his father, Ed Kavanaugh, had a law degree and a great work ethic; he was, for many years, a lobbyist, as head of the Cosmetic, Toiletry, and Fragrance Association. (During Kavanaugh’s confirmation hearing for the D.C. circuit, in 2004, Senator Orrin Hatch, while introducing him, referred to his father: “We all know Ed. We know what a fine person he is and what a great individual he is, and we all respect him.”)
Kavanaugh, who was a clerk for Anthony Kennedy, later worked for the independent counsel Kenneth Starr, during his investigation of President Bill Clinton. What that taught Kavanaugh about when to impeach a President has been a point of speculation. In a 2009 article for the Minnesota Law Review, he wrote that Congress should consider exempting sitting Presidents from criminal indictment, because such cases were distracting and “inevitably politicized”; at the same time, he wrote, “If the President does something dastardly, the impeachment process is available.” Trump, anyway, seems satisfied. Kavanaugh then became a lawyer in the George W. Bush White House, at a time when other lawyers there were writing legal justifications for torture and detention policies—another possible line of questioning at his confirmation hearings. SCOTUSblog, in a profile of Kavanaugh, noted that he had, in his D.C. circuit rulings, exhibited “an expansive view of the government’s power to detain enemy combatants.” Kavanaugh spoke about how he and his future wife, who was Bush’s personal secretary, were evacuated from the White House on September 11, 2001—the day after their first date. There had been some thoughts that Trump might not want to appoint him on the grounds that it would make too many Bushes happy. If so, he got over it. There is more than one sense in which Trump is a political creature—and Judge Kavanaugh is, too.
Amy Davidson Sorkin, a New Yorker staff writer, is a regular contributor to Comment for the magazine and writes a Web column, in which she covers war, sports, and everything in between.