Trump's nominee for the forthcoming vacancy is Brett Kavanaugh, a United States Circuit Judge of the United States Court of Appeals for the District of Columbia Circuit.

By Daniel Herborn


Posted on July 10, 2018

Unless Republicans cross the floor to block the appointment, Kavanaugh will be sworn in before mid-term elections. Before that happens, he will have to face what is likely to be hostile questioning from Democrat senators.

The nomination comes after Anthony Kennedy, a moderate and ‘swing voter’ on the bench announced his plans to retire.

Trump insisted the decision was an apolitical one. “In keeping with President Reagan’s legacy, I do not ask about a nominee’s personal opinions. What matters is not a judge’s political views, but whether they can set aside those views to do what the law and the constitution require,” he said.

“I am pleased to say that I have found, without doubt, such a person.

“Judge Kavanaugh has impeccable credentials and a proven commitment to equal justice under the law — he is considered a judge’s judge, a true thought leader among his peers.

“He is a brilliant jurist, with a clear and effective writing style, universally regarded as one of the finest and sharpest legal minds of our time.”

His son Donald Jr. was less circumspect in trumpeting Kavanuagh’s conservative credentials. Before the announcement, he took to Twitter to predict that “Liberal tears (would) be flowing” over the choice.

Kavanaugh was not initially considered one of the frontrunners for the vacancy in recent discussions although he did appear on the list of 25 potential Supreme Court justices Trump made available last year. He has strong connections to the Republican party however and worked in the Solicitor General’s office during George H.W Bush’s presidency. He was also involved in the Flordia recount in 2000 and was a prominent member of Lawyers for Bush-Cheney.

The nomination can be seen as the culmination of a lengthy process where Trump worked behind the scenes to assure Kennedy his legacy was in safe hands if he chose to retire. Kennedy knows Kavanaugh well; the latter had previously clerked for the retiring justice. Neil Gorsuch, Trump’s previous Supreme Court appointment, had also clerked for Kennedy.

Trump had also worked closely with a group of conservative and libertarian lawyers called the Federalist Society to make the decision.

It is expected Kavanaugh’s appointment, when confirmed, will have a pronounced impact on cases hinging on abortion access and LGBTQ rights. When campaigning for the presidency, Trump promised to appoint Supreme Court judges who were determined to overturn Roe v Wade, the monumental case which affirmed the legality of abortion.

Kavanaugh has also advocated conservative positions on immigration, gun control, business regulations and oversight of the finance industry.

Who is Justice Brett Kavanaugh?

Thr 53-year-old Kavanaugh was appointed to the Federal bench by George W. Bush back in 2003. The Democrats saw him as partisan and held up his appointment.

Former US President George W. Bush hailed Kavanaugh as a “brilliant jurist who has faithfully applied the Constitution” during his tenure on the D.C Circuit.

At today’s announcement, he said he had been influenced by his mother, who started out as a school teacher and later become a trial judge.

“Her example told me the importance of equality for all Americans,” he said.

“My mum was a trailblazer. When I was 10, she went to law school and became a prosecutor.

“My introduction to law came at our dinner table when she practised her closing arguments.

“Her trademark line was ‘Use your common sense. What rings true, what rings false?’ That’s good advice for a juror and for a son.”

Kavanaugh studied law at Yale. Remarkably, every current justice of the Supreme Court completed at least part of their legal education at either Harvard or Yale.

After his clerkship with Kennedy, Kavanaugh worked for Associate Counsel Ken Starr on the impeachment of Bill Clinton. He was one of the principal authors of the Starr Report to Congress. He has since changed his position on presidential impeachments and now believes presidents should be exempt from civil prosecutions while in office.

Kavanaugh as a circuit judge

Kavanaugh has been characterised as a textualist, meaning he views the language of the relevant statute(s) as the primary interpretive tool. Under this approach, the project of the judge is to determine the objective meaning of the legislation as written rather than attempting to ascertain the intention of the law’s drafters.

In 2015, he wrote a dissenting opinion stating that provisions in the Affordable Health Care for America Act mandating insurers cover contraception infringed on religious freedom.

The same year, he wrote a brisk opinion rejecting a challenge to the constitutionality of the government collecting metadata without a warrant. The practice had been exposed by whistleblower Edward Snowden.

“The Fourth Amendment allows governmental searches and seizures without individualized suspicion when the Government demonstrates a sufficient “special need” – that is, a need beyond the normal need for law enforcement – that outweighs the intrusion on individual liberty” he wrote.

The National Rifle Association (NRA) welcomed the announcement. “We will be activating our members and tens of millions of supporters throughout the country in support of Judge Kavanaugh,” it wrote on Twitter.

Critics of Kavanaugh’s appointment

Kamala Harris, a Democrat Senator for California (and possible 2020 presidential candidate) said on Twitter she would oppose the appointment.

Senate Minority Leader Chuck Schumer also said he would vigorously resist Kavanaugh’s nomination. “In selecting Judge Brett Kavanaugh for the Supreme Court, President Trump has put reproductive rights and freedoms and health care protections for millions of Americans on the judicial chopping block,” he wrote in a statement.

Women’s health advocates were also concerned about the nomination of Kavanaugh. Planned Parenthood said his appointment could threaten access to legal and safe abortion.

The American Council of Civil Liberties (ACLU) also voiced its opposition. On Twitter, it described Kavanaugh as potentially “the decisive vote the president needs to ensure that his concerted campaign to undermine civil liberties and civil rights has long-term impact.”