Trump Picks Kavanaugh to Replace Kennedy on High Court

WASHINGTON (CN) – President Donald Trump announced D.C. Circuit Judge Brett Kavanaugh Monday night as his pick to fill a soon-to-be vacant seat on the Supreme Court, setting the stage for a contentious confirmation battle with Democrats concerned that a more conservative court will walk back abortion rights.

The president announced Kavanaugh’s nomination during a televised press conference at the White House.

“Tonight it is my honor and privilege to announce that I will nominate Judge Brett Kavanaugh to the United States Supreme Court,” Trump said.

If confirmed Kavanaugh, 53, will take the seat of Supreme Court Justice Anthony Kennedy, who he previously clerked for beginning in October 1993.

“I’d like to thank Justice Kennedy for a lifetime of distinguished service,” Trump said minutes before he selected Kavanaugh.

The smiling nominee appeared with his wife Ashlee and two daughters beside Trump after he made the announcement, and received the nomination with a standing ovation from those in attendance.

“Judge Kavanaugh has impeccable credentials, unsurpassed qualifications and a proven commitment to equal justice under the law,” Trump said.

Trump called Kavanaugh a “brilliant jurist” and “one of the sharpest legal minds of our time” before inviting Kavanaugh to speak.

“Mr. President, thank you. Throughout this process I’ve witnessed firsthand your appreciation for the vital role of the American judiciary,” Kavanaugh said.

“Mr. President, I am grateful to you. And I am humbled by your confidence in me,” he later added.

Kavanaugh, appointed to the D.C. Circuit in 2006 by George W. Bush, packs a long and detailed record on the bench backed up by experience serving in the George W. Bush White House and time spent working on independent counsel Ken Starr’s investigation of then-President Bill Clinton.

Trump urged the Senate to swiftly confirm Kavanaugh, saying he deserved robust bipartisan consideration. But Democrats will surely press Kavanaugh on whether he would overturn Roe v. Wade, the landmark 1973 case that legalized abortion.

Kennedy, a reliable conservative who sometimes served as a swing vote on controversial issues,  voted several times to uphold abortion rights, first in the 1992 Planned Parenthood v. Casey case and most recently in Whole Woman’s Health v. Hellerstedt.

President Trump has promised to nominate justices who would overturn Roe v. Wade, prompting alarm from reproductive rights advocates that say abortion rights are at stake.

Kavanaugh, without directly addressing his views on whether to overturn the landmark case, nonetheless offered a bit of insight into his judicial philosophy, which he called “straightforward.”

“A judge must be independent and must interpret the law, not make the law,” Kavanaugh said. “A judge must interpret statutes as written. And a judge must interpret the Constitution as written, informed by history and tradition and precedent.”

Later, he promised to tell senators during his confirmation hearing that he reveres the Constitution.

“I believe that an independent judiciary is the crown jewel of our Republic,” he said.

But the assurances he offered Monday night are unlikely to sway Democrats concerned about abortion rights.

Sam Erman, an associate professor at the University of Southern California’s Gould School of Law, said conservatives have been burned by conservative justices before on abortion and want someone on the bench who’s solid on the issue.

“The conservative legal movement has spent decades trying to overturn the idea that there is a constitutional right to have an abortion,” Erman said in a phone interview. “And they have had more than enough Republican appointees to get it. But they’ve had three Republican appointees who didn’t vote the way they hoped they would.”

Those three Republican appointees are retired Justices David Souter and Sandra Day O’Connor, and retiring Justice Anthony Kennedy. The three voted to narrow, rather than overturn Roe v. Wade in the 1992 case Planned Parenthood v. Casey. The court affirmed Roe’s essential holding that a woman has a constitutional right to an abortion, but opened the door for states to prohibit abortion after viability unless a woman’s health was endangered.

Erman said that the conservative Federalist Society, which helped draw up Trump’s list of potential nominees and threw its support behind Kavanaugh, must be confident in how he would vote on any abortion case that comes before the Supreme Court.

“It’s impossible for me to imagine that President Trump would nominate anyone whom the conservative legal movement was not entirely confident would vote their way on abortion cases,” Erman said.

It would only take five votes from Republican-appointed justices in another abortion case to overturn Roe v. Wade, Erman noted.

“It’s exceptionally unlikely that any of them would blink,” he added.

Kavanaugh will also face tough questioning during his confirmation hearings about his role on independent counsel Starr’s investigation, helping to write the report that led to President Clinton’s impeachment.

But Democrats will likely press Kavanaugh about a 2009 article he wrote for the Minnesota Law Review that urged Congress to exempt a sitting president from civil lawsuits, along with criminal investigations or prosecutions. How his prior experience would factor into Supreme Court rulings on any questions related to special counsel Robert Mueller’s probe remains to be seen.

But according to Erman, his colleagues would likely draw from his vast and rare experience working both in the “highest corridors of power with a White House” during the George H.W. Bush administration, and investigating a president.

“He knows how an investigation can gum up a presidency and distract it and make a president less effective,” Erman said. “But he also knows how a White House that stonewalls can make it more difficult for an investigation to uncover what is real wrongdoing that deserves to be brought out into the open.”

Beyond the questions of whether a sitting president can be subpoenaed or indicted, Erman said if the Mueller probe reaches a crisis point, other legal issues from the investigation dealing with document production or assertions of executive privilege could land before the Supreme Court.

In that case, his potential future colleagues might want to hear about his prior experiences.

“His influence would be greater than just his vote,” Erman said. “He might be in a position to sway justices or at least inform them.”

 

 

 

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