President Donald Trump’s selection of Brett Kavanaugh as his Supreme Court nominee reflects a startlingly, well, normal and predictable decision from this most unconventional commander in chief.
Kavanaugh, who currently serves on the DC Court of Appeals, was not the favorite of the most conservative voices in the party who worried about his commitment to getting rid of the Affordable Care Act. Neither was he seen as a particularly Trump-y pick due to Kavanaugh’s long ties to the Bush family; he served in the solicitor general’s office in the administration of George H.W. Bush and then as staff secretary for President George W. Bush. Nor was he seen as the preferred choice of Senate institutionalists like Majority Leader Mitch McConnell (Ky.), who worried that his long history of opinions on the circuit court might complicate his confirmation process.
And yet, Kavanaugh had been the odds-on favorite to be Trump’s pick since the news late last month that Justice Anthony Kennedy was retiring. While there were boomlets for Amy Coney Barrett and Thomas Hardiman – among others – Kavanaugh never fell out of contention or, really, his frontrunner status.
Why? Because Kavanaugh has the pedigree that Trump is drawn to. He went to Yale and Yale Law School. He clerked for Kennedy. He worked in two Republican administrations. And then he served as a judge on a very high-profile court that has been a feeder of sorts to the Supreme Court. (Chief Justice John Roberts as well as Justices Clarence Thomas and Ruth Bader Ginsburg also went from the DC Circuit to the Supreme Court, as did the late Justice Antonin Scalia.)
In announcing Kavanaugh as the pick, Trump showed how much Kavanaugh’s résumé matters – noting that the Supreme Court nominee not only had gone to Yale and Yale Law but also had taught at Yale, Harvard and Georgetown.
The selection of Kavanaugh – and Trump’s prior pick of Neil Gorsuch to replace Scalia on the court – are proof points that, for all of Trump’s seeming rejection of the “elites,” he himself values the educational and professional trappings that are typically associated with them. Despite Trump’s insistence that the elites are responsible for the mess in which the country currently finds itself, he has now picked two Supreme Court justices who have a very clear “elite” pedigree.
Trump’s choice of Kavanaugh also speaks to the power and influence that White House general counsel Donald McGahn has on the President. McGahn was the leading voice in the campaign pushing to release a list of names of people Trump would consider as Supreme Court nominees if an opening arose – a move that, in retrospect, was nothing short of a masterpiece. McGahn also reportedly favored Kavanaugh from the start of the process triggered by Kennedy’s retirement.
None of the above means that Democrats won’t spend the next weeks and months casting Kavanaugh as a wild-eyed ideologue who will make abortion illegal and throw out any attempts to restrict gun rights. (That sort of rhetoric is already happening.) Nor does it mean that there won’t be hemming and hawing from conservatives who will seek to see in Kavanaugh some of the alleged squishiness that made them less-than-thrilled with Gorsuch.
But in the end, after the millions of dollars are spent by outside groups trying to sway a small number of undecided senators, it’s hard to see Kavanaugh being found wanting in terms of the sort of judicial and educational experience that would disqualify him for the court.
And that reality means that if you are one of the five Democrats up for reelection this November in a state Trump won by double digits, it could be very, very difficult to vote against Kavanaugh. Remember that Democrats Joe Manchin of West Virginia, Heidi Heitkamp of North Dakota and Joe Donnelly of Indiana voted for Gorsuch; they are three of the five Democrats who represent states Trump won overwhelmingly in 2016.
It’s always a dicey thing to proclaim two of anything a trend. But when it comes to the Supreme Court, small numbers mean more, since Trump will have picked 22% of its membership in just 18 months in office. And the similarities between Gorsuch and Kavanaugh are striking – Ivy League educated, Supreme Court clerks, Circuit Court judges.
In short, neither man is, on their faces, wildly unqualified for the position to which Trump nominated them. You can disagree with some of their views or past rulings. But what you simply cannot say is that they have no business being considered for the nation’s highest court. They are just the sort of people that, say, President Jeb(!) Bush might have nominated if he had won the GOP nomination and presidency instead of Trump.
Bush, in fact, issued an approving tweet of the Kavanaugh pick shortly after Trump made it. “Excellent choice for SCOTUS,” Bush tweeted. “Judge Kavanaugh will be a strong defender of the Constitution.”
For someone as unorthodox and unpredictable as Donald Trump, his two Supreme Court choices may be the most predictable and practical things he has done in office.