How Brett Kavanaugh Could Change the Supreme Court—and America


President Trump had narrowed his list of contenders for the nation’s highest court to four by the time Air Force One touched down outside Washington on July 8. But Trump wanted another sit-down with one candidate in particular. That evening at the White House, Trump spent more than an hour in his private residence talking with Brett Kavanaugh about the judge’s family, his life growing up in the capital with two lawyers as parents, and his work, according to a person familiar with the discussion. It was the longest amount of time Trump had spent with any of the candidates. After their discussion, Trump said Kavanaugh was a judge “out of central casting,” one of the President’s favorite compliments.

The meeting led directly to the East Room of the White House the following night where Trump announced Kavanaugh’s nomination beneath gleaming chandeliers. There, Kavanaugh needed only 14 words to describe his approach to the bench: “A judge must be independent and must interpret the law, not make the law.” That simple sentence was more than just a judicial philosophy. It reflected the culmination of two distinct efforts at judicial mentoring, which came together in Kavanaugh’s nomination. One was a four-decade effort by an entire generation of conservatives to bend the court away from judicial activism. The other was a patient education and corralling of Trump by a handful of Republican legal elites.

President Trump nominated Brett Kavanaugh to the Supreme Court in a prime-time address from the East Room on July 9

President Trump nominated Brett Kavanaugh to the Supreme Court in a prime-time address from the East Room on July 9

The intrigue surrounding the selection was, of course, classic Trump, from an interview process that resembled a matchmaking show to the pageantry of the prime-time announcement. But the choice will have far-reaching consequences for America’s 325 million citizens. If confirmed, Kavanaugh, 53, could solidify a conservative majority on the court for decades. During his 12 years on the U.S. Court of Appeals for the D.C. Circuit, he has issued some 300 opinions that reflect his reputation on both sides of the aisle as a solid and careful judge. Democrats warn that his conservative record suggests he will bolster the pro-business leaning on the court, advance efforts to strip power from regulatory agencies, slow the expansion of gay rights, strengthen gun rights and open the door for states to chip away at access to abortions.

No single Justice steers the Supreme Court. Kavanaugh’s influence will take years to measure and depends on which cases come before him. Protests from Democrats that Kavanaugh would help overturn the seminal abortion decision Roe v. Wade ignore the court’s deference to precedent. Kavanaugh himself said during his 2006 confirmation hearings for the lower court that Roe was already decided, although Supreme Court Justices can chart a new direction in ways lower courts cannot. But there is little question that his conservative jurisprudence would have a major impact, given Kavanaugh’s intellect, work ethic and reputation for clarity in his opinions. That body of writing persuaded Trump and his conservative advisers that Kavanaugh would remain a stalwart originalist on the bench.

Some observers wonder if Trump may have fixated on one point of view in particular. Kavanaugh, who was part of independent counsel Kenneth Starr’s investigation of President Bill Clinton and later served more than five years in President George W. Bush’s White House, is an ardent believer in executive power. In a 2009 law-review article, he called for Congress to pass a law stating that sitting Presidents should not be subject to criminal investigations or civil suits while in office, adding that the Constitution prescribes the impeachment process as the remedy for ousting a wayward President. That view has obvious implications for special counsel Robert Mueller’s investigation into Trump’s ties to Russia during the 2016 campaign. If the Justices are asked to decide whether Trump can be subpoenaed or charged with a crime in office, it’s clear where Kavanaugh is likely to stand.

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