Trump set to announce Supreme Court pick
President Trump is set to announce Monday night his pick to replace outgoing Supreme Court Justice Anthony Kennedy — a nominee who, if confirmed, will cement a conservative majority on the nation’s highest court.
According to the Associated Press, Trump reached a decision earlier in the day Monday. It’s not yet clear who his choice is.
Trump, who interviewed a total of seven candidates last week, narrowed his list of finalists to a pair of federal appeals court judges, Brett Kavanaugh and Thomas Hardiman, the New York Times reported Monday.
The president had been considering two other judges — Amy Coney Barrett and Raymond Kethledge — before Hardiman emerged as a possible nominee over the weekend. Trump will unveil his choice at an event inside the East Room of the White House in Washington, D.C., at 9 p.m. ET.
Speaking to reporters on Sunday night after spending the weekend at his private golf club in Bedminster, N.J., Trump said he had yet to settle on a nominee but was “getting very close.”
“They’re excellent,” the president said about all four of the possible final choices. “Every one. You can’t go wrong.”
The finalists: Brett Kavanaugh
Kavanaugh, 53, is a federal appellate court judge based in Washington, D.C., who previously clerked for Kennedy. He earned both his bachelor’s and his law degree from Yale and started his career clerking on the appeals court of the Third and Ninth Circuits before eventually working his way to the Supreme Court clerkship. In private practice, Kavanaugh earned a spot as a partner for the firm Kirkland & Ellis.
Kavanaugh worked closely with independent counsel Ken Starr during Starr’s investigation of President Bill Clinton. As documented in the latest episode of the Yahoo News podcast “Skullduggery,” Kavanaugh debunked the conspiracy theories that the Clintons were responsible for former aide Vince Foster’s death before becoming the primary author of the report laying out the case for Clinton’s impeachment. Kavanaugh was concerned with the more explicit sexual details of the report and attempted to redact them just before its publication.
One of the possible grounds for Clinton’s impeachment in Kavanaugh’s report was the fact Clinton lied to his aides and the American public via his press team. In a 2009 piece for the Minnesota Law Review, Kavanaugh said that he believed presidents should not be subject to civil lawsuits or criminal investigations in office because they were “time-consuming and distracting.”
After assisting in George W. Bush’s efforts in the 2000 Florida recount, Kavanaugh joined the White House, serving first as a counsel to the president and then as a staff secretary. Bush nominated Kavanaugh for a position on the D.C. Circuit in July 2003, but his confirmation took nearly three years, because Democrats contended he was too partisan for the federal bench. Kavanaugh was called an “unqualified judicial nominee” by the New York Times before his May 2006 confirmation on a 57-36 vote. In 2016, the conservative National Review wrote said that Kavanaugh’s opinions were “clear, consistent, thorough, and thoughtful” and had an “analytical clarity” that would make the late Supreme Court Justice Anthony Scalia proud.
SCOTUSBlog, a news site about the Supreme Court, has described Kavanaugh as “generally bringing a pragmatic approach” to his decisions but with a conservative judicial philosophy. In analyzing him as a possible replacement for either Kennedy or Justice Ruth Bader Ginsburg, the blog Empirical SCOTUS said Kavanaugh would most likely be to the right of either Kennedy or Ginsburg on the court, but not as far to the right as Justice Clarence Thomas.
In his time on the bench, Kavanaugh has declared the Consumer Financial Protection Bureau unconstitutional and ruled against Obama-era environmental regulations. Kavanaugh’s name being floated as a nominee has caused some infighting on the right, with one group stating that the judge was not anti-abortion enough in a case involving an immigrant girl requesting the procedure. Multiple conservative writers have defended Kavanaugh against this claim.
Hardiman, 53, is on Trump’s Supreme Court shortlist for the second time. He was runner-up to Neil Gorsuch, who Trump nominated to the Supreme Court last year. According to the New York Times, Trump has recently expressed renewed interest in Hardiman, who was added late to the president’s list of finalists. Some in Trump’s inner circle were reportedly intrigued by Hardiman’s life story.
The Waltham, Mass., native, worked his way through high school and college by driving a taxi. If nominated and confirmed, Hardiman would be the only Supreme Court justice not to have attended an Ivy League school. He received a B.A. from the University of Notre Dame, becoming the first member of his family to graduate from college. Hardiman studied law at Georgetown University Law Center, where he edited the Georgetown Law Journal, receiving a Juris Doctor with honors. His relatively humble origins and different alma maters might be preferable for a president who regularly denounces political elites.
Throughout the 1990s, Hardiman was a litigator and trial lawyers at various law firms in Washington, D.C., and Pittsburgh. In 2003, then-President George W. Bush nominated Hardiman to the U.S. District Court for the Western District of Pennsylvania. He would only hold that position for three years before Bush nominated Hardiman to the Third Circuit, where he served with Trump’s sister, Judge Maryanne Trump Barry. She reportedly spoke favorably of Hardiman to her brother.
Kethledge, 51, was born in Summit, N.J., and raised in Michigan. He studied history as an undergraduate at the University of Michigan and went on to the University of Michigan Law School, where he graduated magna cum laude and second in his class in 1993.
Throughout the 1990s and early 2000s, Kethledge held a variety of positions as both a practicing attorney and a public servant. He was a law clerk for Ralph Guy Jr. on the U.S. Court of Appeals for the Sixth Circuit (’93-’94), a counsel for former Michigan Sen. Spencer Abraham (’95-’97), a law clerk for Justice Anthony Kennedy on the Supreme Court of the United States (’97-’98) and a counsel for the Ford Motor Company (’01-’02). He also had a private practice in Michigan.
Former President George W. Bush nominated Kethledge to the Cincinnati-based U.S. Court of Appeals for the Sixth Circuit in 2006 to replace Judge James L. Ryan, and he was confirmed two years later. He has variously been described as a “committed originalist and textualist” and a “principled and blunt judge.”
Amy Coney Barrett
Barrett, 46, is the youngest of Trump’s reported four finalists and the only one Trump appointed to her current post: the Chicago-based 7th U.S. Circuit Court of Appeals. (Democratic Sens. Joe Donnelly, Joe Manchin and Tim Kaine voted to confirm her.) The Notre Dame graduate and law professor clerked for Scalia at one time. Barrett, a devout Catholic, has seven children, including two she adopted from Haiti.
Barrett’s writings indicate she is pro-life. In a 1998 article co-authored by her law professor, Barrett wrote that abortions “take away innocent life” and that “both the state and the unborn child’s mother are (at least typically) acting with gross unfairness to the unborn child.” Barrett also objected to the Affordable Care Act’s penalty cost as a tax in an academic paper and signed a letter opposing the provided birth control benefit.
She’s also said to be a favorite of Fox News host Sean Hannity, who Trump met with at his New Jersey golf club Sunday.
The looming battle
The announcement of Kennedy’s retirement last month sent shock waves across the Capitol and beyond, with Trump and his fellow Republicans poised to shift the court’s ideological balance to the right — and shape the country’s judicial future for generations to come.
Abortion has emerged as a key issue in the looming confirmation battle, as Republicans hold a one-vote majority (51-49) in the Senate and need at least 50 to confirm Trump’s pick.
Sen. Susan Collins, a Maine Republican who supports abortion rights, said last week that she would not support someone who would overturn Roe v. Wade, the landmark 1973 Supreme Court decision that protects a woman’s right to have an abortion.
“I believe very much that Roe v. Wade is settled law,” Collins said on ABC’s “This Week.” “A candidate who would overturn Roe v. Wade would not be acceptable to me, because that would indicate an activist agenda that I don’t want to see a judge have.”
Collins and Sen. Lisa Murkowski, R-Alaska, were among five GOP senators who met with Trump last month to discuss the Supreme Court vacancy. Both are seen as key swing votes.
Trump said he expects a swift confirmation of Kennedy’s replacement before the midterm elections. And Senate Majority Leader Mitch McConnell vowed to vote on Kennedy’s successor “this fall.”
The ‘McConnell rule’
Many Democrats said the Senate should follow the standard set by McConnell and refuse to vote on Trump’s next nominee to the high court. President Barack Obama’s choice for Scalia’s replacement, Merrick Garland, was blocked by Congressional Republicans, who argued that the seat should be left unfilled until after the 2016 election.
“There should be no consideration of a Supreme Court nominee until the American people have a say,” Sen. Dianne Feinstein, D-Calif., tweeted. “Leader McConnell set that standard when he denied Judge Garland a hearing for nearly a year, and the Senate should follow the McConnell Standard now.”
Last week, McConnell reportedly told Trump that Kethledge and Hardiman presented the fewest obstacles to being confirmed.
But Leonard Leo, an official of the Federalist Society who is Trump’s top Supreme Court adviser, said Sunday that the pair were lesser known, and it would therefore take longer to line up conservative support for them.
“It’s important to have people who are extremely well known and have distinguished records,” Leo said on ABC’s “This Week.”
Sen. Lindsey Graham, R-S.C., sees no such issues.
“Republicans are holding four lottery tickets,” Graham said on “Fox News Sunday.” “And all of them are winners.”
Additional reporting by Christopher Wilson, Michael Walsh, Kadia Tubman and Laina Yost
Cover thumbnail photo illustration: Yahoo News; photos: Reuters, AP (2), Getty Images, Reuters, Michael S. Williamson/The Washington Post via Getty Images