President Trump Shows Surprising Artfulness With Kavanaugh Pick


Subtlety not being Donald Trump’s customary approach to his job, his nomination of Brett Kavanaugh to the Supreme Court was a surprisingly artful political play.

For the many Trump supporters who delight in the president’s thumb-in-the-eye approach, the court vacancy was an opportunity for Trump to actually earn the prefab fulminations from Democrats, which were coming no matter whom he chose, by selecting a nominee that another Republican president might have deemed too risky.

The option preferred by this group was Seventh Circuit Court of Appeals judge Amy Coney Barrett, whose presence on Trump’s short list caused palpitations on both sides of the aisle. A nomination of Barrett—a devout Catholic, mother of seven, and a Notre Dame Law grad—promised a full-scale culture war of a confirmation process, whose passions would certainly have spilled over into the November elections.

Instead, Trump chose the safe route. He calculated that if he named a nominee of unassailably prodigious stature, he would thrill the party establishment and keep jumpy Republican senators in line, without too greatly disappointing his anti-establishment base. After all, Kava­naugh was on The List—that campaign compilation of prospective Trump appointees whose embrace of conservative values such as textualism, originalism, and judicial modesty was vouchsafed by both the Federalist Society and the Heritage Foundation.

The first part of that calculation has certainly proved true. Republican elites were “doing cartwheels over the selection,” wrote Jim Geraghty at National Review. Kavanaugh enthusiasts cited the judge’s schooling (Yale), his work in George W. Bush’s White House, his tenure on the D.C. Circuit (the farm team for the high court), his service on Ken Starr’s Whitewater team, and the large volume of his legal writings, which have often been cited in Supreme Court opinions. And, there was the added virtue of Kavanaugh’s personal benignity, evidenced in the autobiographical account he recited at his nomination ceremony—devoted husband and father of two girls, coach of a Catholic Youth Organization basketball team, and volunteer at charities for the homeless. He also cited the diversity of his law clerks, adding, “I am proud that a majority of my law clerks have been women.” That personal detail may prove useful in keeping Republican senators Susan Collins and Lisa Murkowski on board.
Jeb Bush was pleased with the pick.

“Excellent choice for SCOTUS,” Bush tweeted. “Judge Kava­naugh will be a strong defender of the Constitution.”

But what about the Deplorables—the grassroots Trump supporters who have cheered Trump’s disruption of institutional order and for whom a Yale degree and lifetime tenure as a Washington insider are not virtues, but blemishes?

“This was a very smart pick,” says Steve Bannon, Trump’s former chief strategist and an original Deplorable. Bannon says that when he’s asked about the Kavanaugh selection, he replies, “Trust the process.” By that, Bannon means trust The List, the culmination of the conservative legal community’s long project to build a deep bench of bright young constitutionalists.

Bannon notes that when other establishment Republicans, such as many in the national security and foreign relations communities, shunned candidate Trump, the Federalist Society and Heritage stepped up. Trump had had to scramble to put together a list of national security advisers, which brought such figures as George Papadopoulos and Carter Page—and, ultimately, Special Counsel Robert Mueller—into his circle. But the gold-standard names on the judicial list gave Trump leverage with skeptical voters as a candidate, and an invaluable resource as he’s filled the federal judiciary with solid conservatives. In Trump’s hands, The List has acquired an almost mystical status, a talisman against the Republican tendency toward unreliable court picks and Trump’s own erratic inclinations.

On the subject of Brett Kavanaugh, Bannon sounds like an initiated member of the Republican establishment. “I’m all in,” he tells me. “He gives the Court super intellectual firepower. With Gorsuch, Alito, and Kavanaugh, you’re going to have a center of gravity for decades to come, regardless of whether Trump has another pick or not. They’re going to form a conservative intellectual core that will have a profound effect on American life.”

Other Trump supporters have been more muted in their approval of the Kavanaugh pick. On his Fox News program on the night of the selection, Sean Hannity explained Trump’s rationale to his viewers. “President Trump, in many ways, has political aspects to this,” Hannity said. “He had to thread a political needle. And by the way, he has to think about senators like Collins and Murkowski, and then on the other side, Senator Cruz of Texas and Rand Paul of Kentucky. In other words, pick a judge with a very narrow margin in the U.S. Senate who could also successfully maneuver through a confirmation hearing and garner the votes from a majority of senators.”

On the day after Kavanaugh’s selection, Rush Limbaugh hosted Vice President Mike Pence, who assured Limbaugh’s listeners that “What you have in Judge Kava­naugh is a constitutional conservative.” Limbaugh himself focused mostly on the unhinged response to the nomination by the political left.

Kurt Schlichter, the Townhall columnist and scourge of the Never-Trump right, tweeted his approval of the Kavanaugh pick. “We couldn’t lose,” he wrote, in an apparent reference to The List. “And with Kava­naugh, we haven’t.”

Not all of Schlichter’s followers were onboard with his enthusiasm for Kavanaugh. “He will become the next wishy-washy middle of the road squish,” one tweeted. Wrote another: “This pick SUCKS. If we wanted another Bushie swamp creature, we would have voted for Jeb! Kavanaugh is a Roberts-in-the-waiting.”

That Chief Justice Roberts has become anyone’s idea of a moderate squish is an indication of conservatives’ past disappointments in Supreme Court justices, as well as their high expectations in the age of Trump.

Some conservative public figures have been openly critical of the choice of Kavanaugh, perhaps none more pointedly than former Pennsylvania senator and perennial presidential candidate Rick Santorum. “Donald Trump said he was going to energize the base with this pick,” Santorum said during an appearance on CNN. “I don’t think he did that . . . [Kavanaugh] is from Washington, he is the establishment pick, he is the Bush pick. . . . It just seems like Trump, in this case, just bowed to the elite in Washington. I think it’s gonna rub a lot of people the wrong way.”

Radio and television host Mark Levin focused on remarks Kavanaugh made while hearing an ­Obamacare case, in which he seemed to lay the ground for the Supreme Court’s subsequent validation of the law. “You have to assume that Kava­naugh would have voted with Roberts on this, because they both came at it from exactly the same position,” Levin said. “He is not Scalia. He is not Thomas. He is not Alito. And in this case, he wasn’t even Kennedy. So, we’ll see. The conservatives on the Judiciary Committee politely and legitimately need to pursue this. This is a big deal. It goes to the issue of textualism, and originalism.”

Perhaps the most unusual criticism of Kavanaugh came from Fox News judicial analyst Andrew Napolitano, who seemed to tie Kavanaugh’s tenure with the Starr inquiry to a conspiracy to cover up the suicide of Clinton White House deputy counsel Vincent Foster.

“You remember Vince Foster who killed himself in the White House,” Napolitano asked on the channel’s morning “Fox and Friends” show. “How did his body get from the White House to Fort Marcy Park? Who was the prosecutor in charge of figuring out how his body got there? Who was the prosecutor that exonerated Hillary and the thugs that moved his body? A young Brett Kavanaugh. So that’s going to come out.”

Fortunately for Brett Kavanaugh, the universe of Vince Foster conspiratorialists is not likely to be determinative in his confirmation process. In Kavanaugh, Trump has forwarded a nominee who has won the endorsement of both Jeb Bush and Steve Bannon. That is a spectrum wide enough, presumably, to include everyone in the occasionally fractious Republican Senate conference.





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