Democratic activists and lawmakers already are nearly two weeks into their “resistance” of President Trump’s nominee for the U.S. Supreme Court to succeed the retiring Anthony Kennedy, and now they have a name and face for their campaign.
The president announced in the East Room of the White House Monday night his choice to replace Kennedy’s swing vote with a justice he hopes will move the court solidly to the right for a generation is Judge Brett Kavanaugh, 53, of the United States Court of Appeals for the District of Columbia Circuit.
Trump said Kavanaugh has “impeccable credentials” and a commitment to “equal justice under the law.
“In legal circles, he is considered a judge’s judge, a true thought leader among his peers,” the president said, and is “universally regarded as one of the sharpest and finest legal minds of our time.”
The president noted Kavanaugh has authored nearly 300 opinions in his dozen years on the D.C. Circuit “which have been widely admired for their skill, insight and rigorous adherence to the law.”
Among them, he said, are more than a dozen that the U.S. Supreme Court has adopted.
Trump also noted that Kavanaugh is a youth basketball coach, serves meals to needy families and tutors children at elementary schools.
“There is no one in America more qualified for this position and no one more deserving,” Trump said.
Kavanaugh said a judge “must be independent and must interpret the law, not make the law.”
“A judge must interpret statutes as written, and a judge must interpret the Constitution as written, informed by history and tradition and precedent,” he said.
He noted that for the past 11 years, he has taught hundreds of students, primarily at Harvard Law School. He also teaches at Yale and Georgetown.
“I teach that the Constitution’s separation of powers protects individual liberty, and I remain grateful to the dean who hired me, Justice Elena Kagan,” he said. ‘As a judge, I hire four law clerks each year. I look for the best. My law clerks come from diverse backgrounds and points of view. I am proud that a majority of my law clerks have been women.”
A graduate of Yale Law School, Kavanaugh was staff secretary in the Executive Office of the President of the United States under President George W. Bush. He previously served as associate counsel in the Office of Independent Counsel Kenneth Starr, helping draft the Starr report urging President Bill Clinton’s impeachment. He also led the investigation into the suicide of Clinton aide Vince Foster
Kavanaugh, who clerked for Justice Kennedy along with Neil Gorsuch, Trump’s first nominee to the Supreme Court, joined the D.C. Circuit in 2006 after Democrats held up his nomination process for three years.
Some conservative activists have expressed concern about his two decades in Washington. His wife, before they were married, served as personal secretary to President George W. Bush at the same time Kavanaugh was in the White House.
However, Sarah E. Pitlyk, a former law clerk to Kavanaugh who now serves as special counsel for the Thomas More Society, wrote in a National Review column that on “the vital issues of protecting religious liberty and enforcing restrictions on abortion, no court-of-appeals judge in the nation has a stronger, more consistent record than Judge Brett Kavanaugh.”
Kavanaugh’s remarks in a 1998 Georgetown Law Journal article have been spotlighted because of special counsel Robert Mueller’s investigation of the Trump campaign in the 2016 election.
“Congress should establish that the President can be indicted only after he leaves office voluntarily or is impeached by the House of Representatives and convicted and removed by the Senate,” he wrote.
In 2009, Kavanaugh argued the president shouldn’t be criminally prosecuted or civilly sued while in office.
In a Wall Street Journal column, J.D. Vance, a rising conservative voice who wrote the best-selling “Hillbilly Elegy,” praised Kavanaugh, who was one of his professors at Yale.
“He is a committed textualist and originalist, one whose time on the bench has revealed a unique ability to apply these principles to legal facts,” Vance wrote. “He deeply believes in the constitutional separation of powers as a means for ensuring governmental accountability and protecting individual liberty. From the start of his career, he’s applied the Constitution faithfully, even when that made him a lonely voice. He has done so with particular tenacity on the issue that matters most to the president: taking power away from unelected bureaucrats and returning it to elected officials.”
Former President Bush issued a statement Monday saying said Trump’s choice to nominate Kavanaugh was “an outstanding decision.”
“Brett is a brilliant jurist who has faithfully applied the Constitution and laws throughout his 12 years on the D.C. Circuit,” Bush said. “He will make a superb Justice of the Supreme Court of the United States.”
Kavanaugh was among four finalists with fellow appeals court judges Amy Coney Barrett, Thomas Hardiman and Raymond Kethledge. Their names are on a list of 25 possible nominees vetted by conservative groups.
See video of Trump’s announcement and Kavanaugh’s speech:
Schumer to nominee: Reveal your view of Roe
The possibility of a new 5-4 conservative court overturning the 1973 Roe v. Wade decision that created a right to abortion already has mobilized the Democratic Party base, with activist groups pouring millions of dollars into campaigns to persuade senators to oppose Trump’s nominee, regardless of who it is.
Democratic National Committee Chairman Tom Perez immediately sent out a fundraising email Monday night warning that “with Brett Kavanaugh on the bench, Roe v. Wade, affordable health care, labor unions, and civil rights will all be on the chopping block.”
While Kavanaugh has not ruled directly on abortion as a judge, he dissented recently on an appeals court decision that allowed a pregnant teenaged illegal immigrant in federal custody to have an abortion. He has not publicly stated whether or not he would vote to overturn Roe v. Wade.
Some conservative critics have expressed concern about Kavanaugh’s dissent in 2011 saying Obamacare’s individual mandate could fit “comfortably within Congress’ Taxing Clause power.” The critics say that argument provided a foundation for Supreme Court Chief Justice John Roberts’ opinion upholding the mandate. Kavanaugh’s defenders argue he was engaging in a “hypothetical discussion” about the Taxing Clause, and he actually framed the argument for the Supreme Court’s dissenters, who concluded the mandate is unconstitutional under the Taxing Clause.
The conservative legal group Liberty Counsel said Monday night that Kavanaugh “generally brings a pragmatic approach to judging, although his judicial philosophy has applied principles of textualism and originalism espoused by the late Justice Antonin Scalia.”
The pro-life group Operation Rescue noted Trump “promised pro-life supporters during his campaign that he would appoint justices that would respect and protect the most fundamental of human rights – the right to life.”
“His pick of Judge Kavanaugh represents another promise kept,” said Operation Rescue President Troy Newman.
On the Senate floor Monday afternoon, Senate Minority Leader Chuck Schumer said any nominee selected from Trump’s list of 25 will be unacceptable to Democrats, because Trump said during his campaign he wanted a justice who would overturn Roe, and the curator of the list is dedicated to the same.
Trump’s chief Supreme Court adviser is Leonard Leo, who is on leave as the executive vice president of the Federalist Society to serve in the White House.
Schumer cited Ed Whelan, a former clerk for Justice Antonin Scalia and president of the Ethics and Public Policy Center, who wrote shortly before Trump selected Gorsuch, “No one has been more dedicated to the enterprise of building a Supreme Court that will overturn Roe vs. Wade than the Federalist Society’s Leonard Leo.”
“That’s what we’re up against here, and that’s why America is on tenterhooks, so worried about any choice from this list,” Schumer said.
While nominees since Ruth Bader Ginsburg have refused in Senate hearings to give their views on issues on which they may have to rule, Schumer insisted Trump’s nominee has a “serious and solemn obligation to share their personal views” on certain issues and demonstrate “respect” for court precedent. He named Roe v. Wade, Obamacare’s “protection for Americans with pre-existing conditions” and the issue of the “interests of citizens” vis-à-vis corporations.
“Those rights will be gravely threatened,” the Democratic Senate leader said.
Leo said on ABC’s “This Week” Sunday that the notion that Republicans are plotting to overturn Roe v. Wade is only “a scare tactic, and speculation more than anything else.”
“My goal, first and foremost, has always been to find people to serve on the court who believe in the constitution as it’s written,” Leo said. “And that’s really ultimately what drives the conservative legal movement.’
Leo said he’s “very confident with this president’s enthusiasm and with Leader McConnell’s enthusiasm that they can get anybody confirmed.”
On the Senate floor Monday, following Schumer’s remarks, Senate Majority Leader Mitch McConnell, R-Ky., said “one more round of scare tactics will not stop us from doing the right thing.”
“Back in 1975, they assailed the nomination of John Paul Stephens. They said he lacked impartiality and opposed women’s rights. … So these far left groups have been at the same scare tactics for over 40 years,” McConnell said. “This far left rhetoric comes out every single time. The apocalypse never comes.
“No matter their qualifications, no matter their record, no matter their reputation, it’s the same hyperbole, the same accusations, the same old story,” McConnell said.
NARAL Pro-Choice America President Ilyse Hogue contended in a call with reporters last week that Republicans “know that they will not get a justice nominated if the American people know” the nominee’s intent is to overturn Roe.
“What we need to know is that anyone coming onto the Supreme Court is going to uphold the law of the land and particularly a woman’s right to decide what happens to her own body,” she said.
The grassroots Democratic Coalition, which describes itself as “the home of the Resistance to Donald Trump and his agenda,” is rallying supporters to pressure the Senate to delay a vote on the nominee until a new Congress is seated next year.
“A president under investigation should not be able to choose the very justices who may soon be ruling on matters involving Trump-Russia pardons, indictments, and evidence,” the group reasons.
The group has pushed ads in states with Republican and Democratic senators it believes are persuadable, including Sens. Lisa Murkowski, R-Alaska; Susan Collins, R-Maine; Jeff Flake, R-Ariz.; Dean Heller, R-Nev.; Joe Manchin, D-W.Va.; and Heidi Heitkamp, D-S.D.
One week ago, Collins said in a “This Week” interview that any candidate who would overturn Roe “would not be acceptable,” because it indicates an “activist agenda” she didn’t want to see in a judge.
Progressive groups such as NARAL Pro-Choice, Protect our Care and Demand Justice also are pouring millions into ad campaigns.
Heller tweeted July 2: “Senate Democrats are ALREADY threatening to delay the Supreme Court Justice nomination process – even though there isn’t a nominee … Nevadans are tired of the obstruction.”
Sen. Bob Casey of Pennsylvania, a rare pro-life Democrat, is up for re-election, but he said prior to Trump’s announcement that he planned to oppose the president’s nominee “because it represents a corrupt bargain with the far Right, big corporations, and Washington special interests.”
House Minority Leader Nancy Pelosi dispatched a fundraising email Monday saying she is “determined to avenge President Obama if it’s the last thing I do” by preemptively opposing Trump’s nominee, FoxNews.com reported.
She was referring to the refusal of Senate Republicans to vote on Obama’s 2016 Supreme Court nominee to replace conservative stalwart Antonin Scalia, Merrick Garland, until after the election.
“I just learned that SECONDS after Trump’s announcement … Republicans will launch an unprecedented $1.4 MILLION ad blitz to support his nominee,” Pelosi wrote. “I’m worried this will eviscerate our chance to make Republicans pay for the Supreme Court seat they STOLE from President Obama.”