Trump Nominates Second Appointee to the Supreme Court
President Donald Trump nominated D.C. Circuit Court Judge Brett Kavanaugh for the Supreme Court on Monday night, marking his second choice to the highest court in the land. The Yale Law School graduate has served as an appellate court judge since 2006 and once clerked for Justice Anthony Kennedy, who he was nominated to replace.
Legal and Judicial Philosophy
In remarks delivered Monday night in the White House’s East Room, Kavanaugh stated that judges “must interpret the Constitution as written.” In addition, he has emphasized the need for judges to examine the text of the law. “If the text is sufficiently clear, the text usually controls. The text of the law is the law,” he once wrote in a book review published by Harvard Law Review.
Kavanaugh brings experience as a judge to the Supreme Court, having authored roughly 300 opinions in his approximately 12 years on the bench. Many of those opinions demonstrate his fidelity to textualism. For example, in Fourstar v. Garden City Group, Inc. (2017), he wrote, “It is not a judge’s job to add or otherwise re-mold statutory text to try to meet a statute’s perceived policy objectives. Instead, we must apply the statute as written.” Nearly a decade earlier, in a case involving separation of powers, Free Enterprise Fund v. Public Company Accounting and Oversight Board (2008), he dissented from a panel opinion holding that the structure of a board, whose members were removable only for cause by the Securities and Exchange Commission, whose members are in turn removable by the president only for cause, did not violate Article II’s appointments clause or the separation of powers. In essence, he argued that limitations on the president’s ability to remove members of the Public Company Accounting Oversight Board violated the Constitution. He reached his opinion based on “plain text and original understanding of . . . the President’s appointment and removal powers.”
In a 2017 speech at Notre Dame Law School, Kavanaugh stated, “Text matters. The text of a law is the law. When the text is clear . . . follow the text unless the text is absurd or unless the text is overridden by some clear statement canon of interpretation. . ..”
The Senate has received the formal nomination of Judge Kavanaugh. A background investigation has begun, of which there is an extensive body of work. The United States Senate Committee on the Judiciary will conduct a thorough vetting process led by staffers who will pour through judicial opinions, speeches, law review articles, and other materials. Once this is complete, the committee will conduct a full hearing, where members of the committee will be able to question the nominee. After the committee hearing, which may last several days as Justice Neil Gorsuch’s did, the full Senate will then consider Kavanaugh’s nomination, barring unexpected setbacks during the committee hearing. As with Gorsuch’s nomination, for Kavanaugh to be confirmed, he will need to receive a simple majority of Senators’ votes.
Ironically, Kavanaugh is intimately familiar with the contentious nature of the judicial nomination process. He was nominated in 2003 for his seat on the D.C. Circuit, but was not confirmed to the bench until 2006 via a 57-36 vote. Although four Democratic Senators supported his nomination, none of them are currently in the Senate. At the time, Senator Chuck Schumer stated, “Brett Kavanaugh’s nomination … is not just a drop of salt in the partisan wounds, it is the whole shaker.” Schumer likely based his criticism off Kavanaugh’s work in conducting investigations into the Clinton Administration, specifically, his work with Ken Starr at the Office of the Independent Counsel, where he led the investigation into the death of Clinton aide Vince Foster. He was also the primary author of the Starr Report to Congress on the Monica Lewinsky scandal, which could have been the catalyst for his opposition. The Starr Report cited evidence that potentially established grounds for the impeachment of President Clinton.
With the Republicans holding a slim 51-49 majority in the Senate, and with Senator John McCain receiving treatment in Arizona for brain cancer, Democrats will attempt to hold their caucus together in the hope that they can peel off one Republican vote. However, it is the Democrats who are facing a significantly taller task. First, they have fewer members of the Senate than the Republicans. In addition, three Democratic Senators facing reelection this year, in states that Trump won in 2016, all voted to confirm Justice Gorsuch. Due to Trump’s popularity in their respective states, opposing Kavanaugh’s nomination is a risky proposition.
Overall, Kavanaugh is a well-documented nominee with significant judicial experience. Yale Law School Professor Akhil Amar, a liberal who strongly supported Hillary Clinton for president, wrote, “The nomination of Judge Brett Kavanaugh to be the next Supreme Court justice is President Trump’s finest hour, his classiest move.” Ultimately, the Senate will determine whether Kavanaugh is well-qualified to serve on the Supreme Court and should conduct a fair and impartial hearing.