Brett M. Kavanaugh is President Trump's nominee for a Supreme Court slot that could shift the balance of the court for years or decades to come.
1. The big Roe v. Wade question
The biggest subplot of this nomination, to this point, has been Roe v. Wade. Democrats allege this new justice could be the end of it. Perhaps part of that is a motivational tactic for the base, but it's not unreasonable to think that a new 5-to-4 conservative court could at the very least chip away at abortion rights.
That's what is likely to matter when it comes to Kavanaugh's confirmation. In a 51-to-49 GOP Senate, his nomination could falter if he lost the support of at least one Republican. Sen. Susan Collins (R-Maine) has said she won't support a nominee who is “hostile” to Roe, and fellow pro-abortion-rights Sen. Lisa Murkowski (R-Alaska) is considered the other potentially tough vote. You'd think it would be hard for either of them to vote against a Republican nominee, but that's really the only way Kavanaugh fails.
So where does Kavanaugh stand? Democrats allege that pretty much every potential Trump nominee is hostile to Roe. But Kavanaugh may be slightly less “hostile” than other shortlisters like Amy Coney Barrett.
Here's what Kavanaugh told the Senate in 2006, when he was being confirmed to the U.S. Court of Appeals for the D.C. Circuit: “If confirmed to the D.C. Circuit, I would follow Roe v. Wade faithfully and fully. That would be binding precedent of the court. It's been decided by the Supreme Court.” He added: “It’s been reaffirmed many times.”
5/9/2006— Howard Mortman (@HowardMortman) July 5, 2018
Sen Schumer: "Do you consider Roe v. Wade to be an abomination?"
Brett Kavanaugh: "If confirmed to the D.C. Circuit, I would follow Roe v. Wade faithfully and fully. That would be binding precedent of the Court. It's been decided by the" #SCOTUS https://t.co/x4Y2zovSaB pic.twitter.com/54u3JZWeeL
Kavanaugh has certainly ruled against abortion rights in given cases. But of the four finalists for this seat, he may be the most Collins- and Murkowski-friendly. Offering a similar response this time won't cheer abortion opponents, but it could assure his confirmation.
2. The McConnell question
While Kavanaugh might have been a or even the favorite, Senate Majority Leader Mitch McConnell (R-Ky.) seemed to nudge Trump against picking him late in the process. As the New York Times first reported and The Washington Post confirmed, McConnell suggested to Trump that either Raymond Kethledge or Thomas Hardiman would be easier to confirm than Kavanaugh or Barrett, the other finalist.
Here's how Maggie Haberman and Jonathan Martin described it:
While careful not to directly make the case for any would-be justice, Mr. McConnell made clear in multiple phone calls with Mr. Trump and the White House counsel, Donald McGahn, that the lengthy paper trail of another top contender, Judge Brett M. Kavanaugh, would pose difficulties for his confirmation.Mr. McConnell is concerned about the volume of the documents that Judge Kavanaugh has created in his 12 years on the U.S. Court of Appeals for the District of Columbia Circuit, as well as in his roles as White House staff secretary under President George W. Bush and assistant to Kenneth W. Starr, the independent counsel who investigated President Bill Clinton.The number of pages is said to run into the millions, which Mr. McConnell fears could hand Senate Democrats an opportunity to delay the confirmation vote until after the new session of the court begins in October, with the midterm elections looming the next month. And while Judge Kavanaugh’s judicial opinions are publicly known, Mr. McConnell is uneasy about re-litigating Bush-era controversies, the officials briefed on his discussions with Mr. Trump said.
All of that is now operable. McConnell's team will emphasize he didn't necessarily argue against Kavanaugh, but it's clear there was a preference, just from strictly a getting-it-done and calling-it-a-win standpoint. Now we see if McConnell's fears (to the extent they existed) were legitimate.
3. The Bush-Rand Paul question
Some reports last week indicated Kavanaugh could run into opposition from a Republican not named Collins or Murkowski. Sen. Rand Paul (R-Ky.) was reported to have concerns or even — in the telling of some — outright opposition to Kavanaugh. The Times reported this weekend that McConnell was partially motivated by the idea that Kavanaugh's views could jeopardize his libertarian Kentucky colleague's support. Kavanaugh has backed extensive presidential authority and government surveillance post-9/11.
something to watch: Sen. Rand Paul has some reservations about Kavanaugh, per a few of his friends plus a WH aide. He has voiced these privately in recent days, but not publicly, the people said. Waiting to see what POTUS does... Paul was unavail for comment.— Robert Costa (@costareports) July 2, 2018
What are Paul's concerns? Friends of his tell me it's Kav's decisions on health care/ACA constitutionality + his work in W.'s White House. Paul World so far has been mum about all of this.— Robert Costa (@costareports) July 2, 2018
Paul is still not on the record here, though. His chief strategist, Doug Stafford, clarified to me Monday night that Paul never said he would oppose Kavanaugh.
Unless he never said he was opposed. Which he didn’t.— Doug Stafford (@dougstafford) July 10, 2018
Okay. Fair enough. But that doesn't mean Paul won't have some pretty pointed questions. Part of the concern about nominating Kavanaugh had to do with unearthing some of the Bush administration's controversies, which may not just be about Paul. Paul may not be outright opposed to him, but it was clear this whole thing gave McConnell some pause for potentially undetermined reasons.
4. The Trump question
While Democrats will certainly be interested in what Kavanaugh has to say about Roe, the second biggest issue for them may have to do with Trump. That would be Kavanaugh's past comments on how a sitting president shouldn't be distracted by investigations and lawsuits.
As The Post's Michael Kranish and Ann E. Marimow wrote shortly after Kavanaugh's name bubbled up for this pick:
U.S. Circuit Judge Brett M. Kavanaugh, a former clerk for Supreme Court Justice Anthony M. Kennedy who was nominated to replace him, has argued that presidents should not be distracted by civil lawsuits, criminal investigations or even questions from a prosecutor or defense attorney while in office.Kavanaugh had direct personal experience that informed his 2009 article for the Minnesota Law Review: He helped investigate President Bill Clinton as part of independent counsel Kenneth W. Starr’s team and then served for five years as a close aide to President George W. Bush.Having observed the weighty issues that can consume a president, Kavanaugh wrote, the nation’s chief executive should be exempt from “time-consuming and distracting” lawsuits and investigations, which “would ill serve the public interest, especially in times of financial or national security crisis.”
This, of course, has hugely unforeseen implications today, with Trump facing both multiple investigations and lawsuits. And if you were conspiratorial, you'd say he wanted a justice who might agree with such views if, say, the Supreme Court had to decide whether a sitting president like himself had to comply with a grand jury subpoena.
You can bet Democrats will press Kavanaugh on whether he would recuse himself from any cases personally involving the man who appointed him.