In President Trump’s Supreme Court sweepstakes, Judge Kavanaugh has emerged both as the establishment front-runner and as a divisive target of attacks from both sides of the political spectrum.
Trump is said to have narrowed the candidates to fill Justice Kennedy’s seat to at most four finalists: Judge Raymond Kethledge of the Sixth Circuit, Judge Amy Coney Barrett of the Seventh Circuit, Judge Amul Thapar of the Sixth Circuit, and Kavanaugh. Thapar appears to have faded from the top tier, though some court-watchers caution not to count him out. The White House is scheduled to announce the selection Monday (July 9) in primetime—or Trump could decide not to wait that long.
Among the candidates, Kavanaugh has received the most attention, both positive and negative. With a double Yale pedigree and a long history in D.C. Republican circles, he is seen as the safe establishment choice. He is favored by many institutional Republicans—including White House counsel Don McGahn, according to Politico. Choosing Kavanaugh would be in line with the recent historical trend of presidents treating the D.C. Circuit as a sort of Triple A squad from which to fill the big-league bench.
But those same establishment credentials have made Kavanaugh the subject of heated criticism from some grassroots conservatives. In lobbying behind the scenes, they are depicting him as too tied to D.C. and, in particular, too tied to the Bushes. Kavanaugh was staff secretary to George W. Bush and married Bush’s personal secretary, Ashlety Estes, before being appointed by Bush to the D.C. Circuit. Those roots could hurt him with Trump, who is known to detest people he deems “Bushies” and who may wish to nominate a judge from outside the D.C. “swamp.”
Kavanaugh’s conservative detractors are also quietly attacking him over his jurisprudence. Most pointedly, they say a 2011 dissent Kavanaugh wrote in Seven-Sky v. Holder laid the groundwork for the Supreme Court to uphold the Affordable Care Act’s individual insurance mandate. Kavanaugh’s dissent argued that the individual mandate should be analyzed as a tax and that, under the Anti-Injunction Act, courts did not have jurisdiction to consider its constitutionality. A year later, when the ACA came before the Supreme Court in NFIB v. Sebelius, Chief Justice Roberts famously salvaged the mandate by treating it as a tax (and, unlike Kavanaugh, finding jurisdiction to uphold it).
The anti-Kavanaugh whisper campaign points to two other hot-button dissents to depict him as insufficiently pro-life. In one case, Priests for Life v. HHS, which involved the ACA’s contraception coverage mandate, Kavanaugh said Supreme Court precedent “strongly suggested” that the government has a “compelling interest” in facilitating access to contraceptives for women employees. (He went on to argue, however, that the contraception mandate should nonetheless fall because it was not narrowly tailored to achieve that interest.)
In another case, as Katie Barlow previously noted, Kavanaugh wrote a forceful dissent from the en banc court’s order allowing an undocumented teenager to obtain an abortion. That dissent, in Garza v. Hargan, apparently did not go far enough for some conservatives because it did not totally rule out the minor’s right to abortion in certain circumstances. You can read all of Kavanaugh’s opinions for the D.C. Circuit here.
The backlash to Kavanaugh has reached as high as the U.S. Senate. ABC News reported that Senators Rand Paul of Kentucky and Tom Cotton of Arkansas have both told Trump they are concerned about Kavanaugh.
Liberal groups, for their part, have already started to pour money into ad campaigns opposing whoever ends up as Trump’s nominee, and Kavanaugh has been in their cross-hairs for a while. Even before Kennedy’s retirement, a group called Demand Justice, which is run by Hillary Clinton’s former press secretary, began running attack ads against Kavanaugh on the theory that he could be nominated one day.
By Monday or perhaps before, Kavanaugh and the country will know if that day has arrived.
