The big winner of President Trump’s second Supreme Court pick is Trump himself. He seized the retirement of Justice Anthony M. Kennedy to remind the Republican Party why it needs him: He has the power to make the Supreme Court lean more reliably conservative for a generation.
And Trump took a big step in that direction Monday by nominating Appeals Court Judge Brett Kavanaugh. It’s a solidly conservative pick but not without some controversy on the right and left. Here are the potential political winners and losers from Kavanaugh’s nomination.
The outgoing Justice Kennedy: Kavanaugh wasn’t the only former clerk of Kennedy’s on Trump’s list of potential nominees. But Kavanaugh’s addition to the list last fall, The Post reports, was seen as a way of reassuring Kennedy that he could retire while Trump was president and have a replacement he could be happy with.
George W. Bush: In one way, it’s surprising that Trump picked Kavanaugh. He spent a number of years as a top aide to President George W. Bush, and the Bush family represents a wing of the party that’s been at odds with Trump. They represented the very establishment that Trump decried on his way to winning the GOP nomination. And a number of Bush family members have been critical of Trump lately. The Post reports that Trump was very aware of this dynamic and that he questioned whether picking Kavanaugh would ding his standing among his loyal supporters, who aren’t necessarily Bush fans.
Russia-investigation intriguists: It’s not out of the realm of possibility that aspects of the ongoing investigation into how Russia interfered in the 2016 presidential election will reach the Supreme Court. And if that happens, Kavanaugh has more relevant material in his past than your average judge for both sides to dig through.
He was a top lawyer on the Kenneth Starr investigation into Bill Clinton’s affair with Monica Lewinsky. Kavanaugh was a big advocate of forcing Clinton to answer graphic questions about Lewinsky to try to put the president on the spot, report The Post’s Michael Kranish and Ann E. Marimow. But when it came time to lay out grounds for impeachment of Clinton, Kavanaugh was more circumspect. “He needs therapy, not removal,” Kavanaugh said afterward, according to a book by The Post’s Bob Woodward.
A decade later, Kavanaugh argued in the Minnesota Law Review that criminal investigations and lawsuits against the president are “time-consuming and distracting” and ultimately don’t serve the public good. “[A] President who is concerned about an ongoing criminal investigation is almost inevitably going to do a worse job as President,” he wrote.
What does that mean for the Russia investigation? Lots of people will have theories in the days to come.
Partisanship: Whomever Trump picked was going to divide lawmakers and voters on mostly partisan lines. Kavanaugh especially will, though. He has decades of paper trails on everything from Clinton’s affair to Bush administration policy to affirmative action and abortion. His first attempt to get on a federal bench took three years. Senate Democrats threatened to filibuster Kavanaugh's nomination to the D.C. Circuit Court, accusing him of being a political operative and rubber stamp for Bush.
Mitch McConnell: The Senate majority leader specifically did not want Trump to pick Kavanaugh, The Post reported. McConnell is worried that Kavanaugh’s partisan record could jeopardize what McConnell is hoping will be a speedy confirmation process. Senate Republicans have a hard deadline of the Nov. 6 congressional elections, which could, in the worst-case scenario for Republicans, put Democrats in control of the Senate.
Abortion rights activists: There were more conservative picks on Trump’s shortlist, especially when it comes to abortion. But Kavanaugh is still a conservative judge. He once ruled against an immigrant teen who was being held by the federal government and wanted an abortion (though he didn’t go a step further and say she had no constitutional right to that abortion). LGBT activists, gun control activists, some campaign finance activists and women’s rights groups also raised alarm about Kavanaugh on Monday night.
Kavanaugh is “far to the right, but not at the edge of the spectrum,” legal scholar Adam Feldman put it to The Post’s Kranish and Marimow.
Senate Democrats: Within minutes of Trump announcing his pick, Senate Minority Leader Charles E. Schumer (D-N.Y.) issued a statement promising to “oppose Judge Kavanaugh’s nomination with everything I have.”
Except that probably won’t be enough to stop Kavanaugh from getting on the court. The confirmation vote in the Senate will be close, given that Republicans have just a 50-49 majority right now with Sen. John McCain (R-Ariz.) battling brain cancer. But there would have to be something really remarkable in Kavanaugh’s record to prevent a Republican-controlled Senate from approving a pick by a Republican president to firm up the court’s 5-4 conservative majority.