President Donald Trump likes to upset the apple cart. He denounces the Washington “swamp,” makes unorthodox Cabinet appointments and defies traditional Republican views on foreign policy and trade.
But there’s nothing unconventional or populist about his latest pick for the U.S. Supreme Court.
That isn’t to suggest Judge Brett Kavanaugh isn’t solidly conservative. He is, in fact, a product of an intellectual and political movement that has shaped a generation of judges who are redefining the jurisprudence of the federal courts. He’s widely respected in Republican legal circles, and his addition would cement a conservative 5-4 majority on the Supreme Court.
So he will be — and should be — subject to careful scrutiny.
Still, in choosing Kavanaugh, the outsider president named an insider’s insider to the court.
Kavanaugh studied law at Yale, and his lengthy Washington resume includes clerking for Anthony Kennedy, the justice he would succeed on the Supreme Court; serving as a staff lawyer for Ken Starr, the special counsel who investigated President Bill Clinton; stints in the George W. Bush White House and the solicitor general’s office; and 12 years on the Court of Appeals for the D.C. Circuit, a court widely seen as second only to the Supreme Court in influence and prestige.
In short, he would have been a front-runner for a Supreme Court appointment under almost any Republican president.
“Of all the things that Trump has done, this is the least surprising,” David Fontana, a constitutional law professor at George Washington University, told Time magazine.
Trump’s conventional choice disappointed some social conservatives but makes it less likely that he will lose any Republicans on the confirmation vote. Some Democrats say confirmation hearings should be delayed until after November’s elections, citing the refusal of Senate Republicans to consider President Barack Obama’s nominee in 2016. But it was wrong then, and it would be wrong now.
Kavanaugh should, nevertheless, be subject to rigorous screening.
Trump has promised to appoint only reliably anti-abortion and pro-gun justices, and senators should question Kavanaugh closely on his views on those subjects — as well as whether he made any promises to the president or his staff.
He should be asked about his views on the Constitution, the scope of executive branch powers and how much deference the court should give to its own precedents when deciding cases.
Senators should ask about Kavanaugh’s writings for the appellate court, and they should ask about a 2009 law review article arguing that sitting presidents should be protected from civil lawsuits and criminal investigations — a view that evidently changed after he left the special counsel’s office.
Unfortunately, the confirmation process, like the selection process leading up to Monday’s prime-time TV announcement, has become more drama than substance as Supreme Court appointments have turned increasingly partisan.
So expect Kavanaugh, like other recent nominees, to deliver carefully rehearsed, noncommittal and, at times, evasive answers to senators’ questions.
And, with a Republican majority in control of the Senate, and rules denying any leverage to minority Democrats, expect that Kavanaugh ultimately will be confirmed on a largely party-line vote, probably before the midterm elections in November.
The outcome of that election, and the presidential election in 2020, could shift the balance of power on the next Supreme Court nomination.