Is Trump Ready to Nominate Brett Kavanaugh for Kennedy’s Supreme Court Seat?

There’s a pretty good reason Brett Kavanaugh is likely to be President Trump’s nominee to replace Justice Anthony Kennedy on the Supreme Court. Kavanaugh appears to meet the president’s three criteria better than the other finalists.

One, Kavanaugh is well-qualified. What Trump means by that term is vague. But we know he’s snobbish about law schools. For what it’s worth, he mentioned two in passing, Harvard and Yale. Kavanaugh is a two-fer at Yale, undergrad and law school.

Amy Coney Barrett and Raymond Kethledge are also two-fers, but not at Ivy League schools. Barrett went to Notre Dame, Kethledge to Michigan.

Two, Kavanaugh is not weak. This is important to Trump. The president never apologizes, for example, for fear it would make him look weak. For a seat on the Supreme Court, he’s partial to someone who won’t just follow popular trends. He wants a justice who won’t go along to get along. At least for a Supreme Court justice, the president rejects Sam Rayburn’s famous advice to new House members about not rocking the boat.

Three, Kavanaugh is an originalist. When a law is under review, he focuses its meaning when it was initial passed. That’s what matters, not some modern interpretation dreamed up years later by a progressive judge. Others on the president’s list—perhaps even all of them, to one degree or another—meet this criterion.

This hat trick puts Kavanaugh, 53, who’s been a judge on the federal appeals court in the District of Columbia for the past dozen years, in a strong position. It doesn’t guarantee Trump will pick him. I’m guessing he will. But I could be wrong.

Nor am I endorsing Kavanaugh over Barrett or Kethledge. I’m merely suggesting his chances of being nominated are better.

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Kavanaugh has other qualities worth mentioning. He was a law clerk to Justice Kennedy. So was Kethledge. I don’t know if Kennedy and Trump talked about the possibility that a former clerk might succeed him. There’s nothing wrong with that if they did. Washington gossip had it that the presence of his former clerks on the list as possible nominees made it easier for Kennedy to retire.

Another of Kavanaugh’s strengths is his sterling reputation in conservative legal circles, especially in the nation’s capital. This group includes people who talk to Trump and influenced his decision to nominate Neil Gorsuch for the seat of the late Antonin Scalia last year.

Kavanaugh has his critics. But their complaints about his opinions are few and picayunish. And political sniping over the fact that Kavanaugh worked for three years as staff secretary in George W. Bush’s White House didn’t dent Kavanaugh’s reputation.

Meanwhile, Democratic strategists are talking a big game about persuading Republican senators Susan Collins of Maine and Lisa Murkowski of Alaska to defect. They claim any nominee picked from Trump’s list of 25 conservatives would be the fifth vote to repeal Roe v. Wade.

Democrats said that about Gorsuch, too. But Collins and Murkowski, both supporters of Roe, didn’t bite then and every Republican senator voted to confirm Gorsuch. This time, there will be even more pressure on the two senators because Kennedy had backed Roe.

One more thing. Trump could change his mind. He likes to have a personal rapport with those he puts in high office. In 2017, he became comfortable with federal appeals court Judge Thomas Hardiman, who lost out to Gorsuch. But Hardiman is on his short list again this year.

Should the president change him before announcement day on Monday, who might he turn to? My guess is Hardiman.

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