Analysis Law and Policy

Trump Nominates Brett Kavanaugh to Supreme Court

Jessica Mason Pieklo

This is the reality TV presidency. Except the stakes are much, much higher: Our rights are on the line.

President Donald Trump on Monday announced he was nominating Judge Brett Kavanaugh to replace Justice Anthony Kennedy on the U.S. Supreme Court.

ABC cut away from its broadcast of the reality TV dating show The Bachelorette to cover the announcement, in what might be the most apt metaphor for the Trump administration yet. The Trump team has teased the press with possible contenders since Kennedy announced his retirement in June, even meeting with Republican Utah Sen. Mike Lee, purportedly to vet him for the seat. Trump’s team prepared roll-out packages for each of his rumored finalists ahead of Monday night’s announcement, not dissimilar from the way The Bachelorette franchise broadcasts its pre-packaged contestants’ occupation, social media handles, and ideal first dates.

And, like it always seems to do, the mainstream media took the bait. The New York Times breathlessly reported late Sunday that Senate Majority Leader Mitch McConnell had pushed to have Trump nominate either Judge Thomas Hardiman or Judge Raymond Kethledge because those would be easy “wins” in the Senate—as though senators from both parties weren’t prone to laying down their weapons in the face of battle with the administration.

This is the reality TV presidency. Except the stakes are much, much higher. This is no game.

On Monday, it was Kavanaugh who finally got the rose.

A former Kennedy law clerk, Kavanaugh was the early frontrunner for Kennedy’s seat, though he faced pushback from some conservatives who asserted, despite all evidence to the contrary, that Kavanaugh is not conservative enough for their tastes. Kavanaugh has the backing of the Federalist Society’s Leonard Leo (who is currently on leave from the organization but is advising Trump) and over a decade of experience on the D.C. Circuit Court of Appeals, where he authored opinions against undocumented minors’ right to an abortion and for corporate religious rights.

A graduate of Yale College and Yale Law School, Kavanaugh has devoted his entire career to extreme right-wing causes, which makes the conservative pearl clutching over his nomination even more ridiculous. Early in his career, Kavanaugh worked with then-independent counsel Kenneth Starr as part of the U.S. Solicitor General’s office. There, he was a principal author of the Starr Report, which conservatives would use to impeach then-President Bill Clinton.

Kavanaugh has since changed his tune on the power to investigate the president, though. He wrote an article for the Minnesota Law Review in 2009 where he argued that sitting presidents should be able to have a deferral of civil lawsuits and criminal investigations and prosecutions because they are distractions to the business of being president. This seems noteworthy and relevant to current events, to say the least.

Kavanaugh also served as senior associate counsel and in various other roles in the George W. Bush White House, where, among other things, he helped to select conservative judicial appointees like William Pryor and usher them through the confirmation process.

The nomination of Kavanaugh to replace Justice Kennedy marks an important turning point in the federal judiciary. Under Trump, we’re witnessing a transformation of the federal bench like no other in this country’s history. In addition to naming two Supreme Court justices within the first two years of his first term in office, Trump has announced 15 waves of judicial nominees. Fifteen. That’s a lot of lifetime appointments for a group of conservative jurists who are overwhelmingly young, white, and male.

And Trump is moving fast in his crusade to capture the courts. Kennedy retired only 12 days ago. Trump moved as quickly to nominate Neil Gorsuch, announcing his nomination on January 31, just weeks after taking office. Gorsuch was confirmed with bipartisan support in the Senate on April 7. Should Kavanaugh’s nomination follow a similar trajectory, then the Senate will be considering the nomination with midterm elections looming—and a new justice potentially sworn in to start hearing arguments when the Court’s term begins again in October.

This sea change in the federal courts is happening amid vitally important civil rights battles there. This term alone, the Supreme Court refused to say definitively whether businesses can raise religious objections to anti-discrimination laws, and whether partisan gerrymandering can ever violate the Constitution. Additionally, the question of whether your boss can fire you for being gay is still unsettled in the federal courts. In other words, it’s almost a certainty that Trump’s Court will be the one to decide these issues.

And we all know they are coming for abortion rights, contraception, and marriage equality.

As Trump took the podium to announce Kavanaugh’s nomination, he invoked the Court as a “crown jewel” of our democracy and thanked Justice Kennedy for a lifetime of distinguished service to a room full of applause. And, to make the coronation official, he even brought out the late Antonin Scalia’s wife Maureen and conservative bulwark Ed Meese, the former solicitor general under the Reagan administration, to set up the Kavanaugh reveal.

At the end of the day, as in all reality TV, there was a clear winner in Trump’s selection process. But unlike on The Bachelorette, the rest of us are the ones who were always going to lose.

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