Analysis: Trump Court Pick Aimed at Cementing Legacy
WASHINGTON — July 10, 2018
With fanfare befitting the nation’s pre-eminent showman, President Donald Trump on Monday poured accelerant on his campaign to shift Washington’s balance of power toward conservatives and remake the federal judiciary for generations to come.
Trump’s nomination of Judge Brett Kavanaugh to the Supreme Court is the latest milestone in what has been an 18-month, top-to-bottom remaking the federal bench, the fulfillment of more than three decades of emergent conservative legal jurisprudence, and a watershed moment for the president and his legacy. Trump’s tax cuts will fade with time, regulations erased by this president can be rewritten by the next one, spats with foreign leaders can be patched up, but judicial appointments — and their court rulings — endure for decades.
“When the political winds shift, Congress never leaves policy issues alone,” said Senate Majority Leader Mitch McConnell, who has served as the legislative architect of Trump’s remaking of the courts. “When we did comprehensive tax reform 30 years ago, it lasted four years. What I want to do is make a lasting contribution to the country.
“And by appointing and confirming these highly intelligent nominees to the courts who are in their late 40s or early 50s, I believe, working in conjunction with the administration, we’re making a generational change in our country that will be repeated over and over and over down through the years,” he added.
For a president increasingly besieged by political scandals, a special counsel investigation and congressional gridlock, the high court nomination secures a relatively unsung, but wide-reaching, impact on the nation.
So far Trump has more than doubled his predecessor’s rate of judicial appointments. In 18 months he has selected more than 12 percent of active appellate court judges and still more are pending before the Senate. At the district level, he’s secured 20 lifetime appointments, and another 70-plus are set to be brought up in the Senate.
“President Trump has taken advantage of an enormous political opportunity to transform the federal judiciary,” said Leonard Leo, the president’s outside adviser on judicial nominations and an official at the conservative Federalist Society, which has vetted his judicial picks. “This has been a defining feature of the president’s agenda.”
Trump was intent on maximizing the impact of his appointments by studiously seeking out a younger nominee, according to officials involved in the process. Kavanaugh, 53, could reasonably be expected to serve three decades on the high court. Trump is replacing Kennedy, the court’s swing vote for more than a decade, with an avowed conservative whose positions could upend precedents on matters from abortion to gay rights to the powers of the executive branch.
Kavanaugh, seeking to get ahead of the coming confirmation fight in the Senate, made a point of giving shout-outs in his speech to the female influences in his life, mentioning his wife, mother, daughters and female law clerks.
Trump’s landmark success on judicial nominations comes in no small part due to the work of McConnell, who oversaw a blockade on President Barack Obama’s court picks to create what White House counsel Don McGahn called an unprecedented number of vacancies to be filled by the next Republican president.
Both McConnell and Trump realized early on that the judicial vacancies could prove to be a potent political weapon, an opportunity to heighten the stakes of the campaign. In the throes of the GOP primary campaign in 2016, Trump released a Leo-approved list of nominees designed to reassure skeptical conservative voters who were slow to embrace his candidacy.
As McConnell plans a flood of judicial confirmation votes this summer and fall, the GOP is hoping to run again on the success of Trump’s judicial confirmations.
The selection of Kavanaugh marks the latest blow by the Trump administration against what conservative legal circles call the “administrative state,” an effort that goes hand in hand with widespread deregulation and efforts to limit the power of the federal bureaucracy.
Kavanaugh has been a strong voice on the D.C. circuit for reining in regulatory agencies, including an opinion, in dissent, in which he would have declared the Consumer Financial Protection Bureau unconstitutional.
A senior White House official, speaking on condition of anonymity to describe internal deliberations, said Trump decided on Kavanaugh, the front-runner throughout the search process, because of his large body of jurisprudence cited by other courts, making him, as Trump called him, “a judge’s judge.”
Trump, who ran on disrupting Washington, for the second time selected a mainline conservative to the court, following on last year’s pick of Neil Gorsuch. A member of the GOP legal elite, Kavanaugh is a darling of the legal movement promoting “originalism” that has come to the forefront in recent decades.
“A judge must interpret the law, not make the law,” Kavanaugh said, repeating a mantra of the self-proclaimed “textualists” who have made up the bulk of Trump’s judicial picks.
“The president’s not a lawyer — he doesn’t have the same detailed knowledge, but he understands at a fundamental level that the way you ensure fair judging is by making sure that judges interpret the law as it’s written,” said Leo.
Kavanaugh may have additional relevance to Trump. Once a key player in the investigation that led to President Bill Clinton’s impeachment, Kavanaugh later wrote that the experience, coupled with his time working for President George W. Bush, had persuaded him that presidents should not have to face criminal investigations, including indictments, or civil lawsuits while they are in office.
In 2009, Kavanaugh said Congress should enact a law to defer legal action against a president until after he had left office. Some of these issues could be before the court in the event special counsel Robert Mueller tries to compel Trump’s testimony or, perhaps less likely, persuades a grand jury to indict Trump in connection with the Russia investigation.
Kavanaugh’s nomination may not be Trump’s final opportunity to cement his influence — with several aging justices, he may get one or two more picks.