Kavanaugh was a predictable choice, but could be an unpredictable justice

Image: Donald Trump
President Donald Trump shakes hands with Brett Kavanaugh, his Supreme Court nominee, in the East Room of the White House, in Washington on July 9, 2018. Copyright Evan Vucci AP
By Danny Cevallos with NBC News Politics
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ANALYSIS: It was always clear why Trump would be drawn to Brett Kavanaugh. It is less clear whether the nominee will be faithful to him.


There were subtle signs on Monday that President Donald Trump was preparing to nominate Judge Brett Kavanaugh, from the D.C. Circuit Court of Appeals, to succeed Anthony Kennedy on the Supreme Court.

On Monday at 4:30 p.m., Kavanaugh's court, which doesn't normally issue opinions on Mondays, issued a ruling. That was a hint that Kavanaugh was planning on being unavailable in the near future, and wanted to get his judicial affairs in order, completing work important to him before he left.

Then there were reports that Kavanaugh was spotted leaving the court of appeals in a black car with a squad of black SUVs and security agents. One of Kavanaugh's competitors for the job, Judge Amy Coney Barrett, was asked at her home in Indiana if she was the court pick. Her response: "I can't confirm nor deny anything, but you can see that I'm here."

But long before Monday, Kavanaugh made sense as Trump's choice. He is a Yale graduate, and Trump has always had an affinity for Ivy Leaguers — not unlike his reverence for generals and other career military officers.

Kavanaugh was a law clerk to Kennedy in 1993. That might be cause for alarm among conservatives, but not for Trump. That's because Trump's recent positive meeting with the retiring justice went well, and it was fresh in his mind. To Trump, that most likely carried more weight than Kennedy's judicial philosophy.

And because of his animosity toward the Clintons, Trump probably loved Kavanaugh's involvement in preparing the 1998 Starr Report to Congress, which provided the foundation for President Bill Clinton's impeachment.

Kavanaugh was approved by the conservative Federalist Society, just like Trump's first nominee, Justice Neil Gorsuch, whom Trump considers a huge success.


Now that the country is looking ahead to the confirmation process, there's not much question what the most divisive issue will be. It probably won't be "Chevron deference" or net neutrality. It will be abortion.

In a recent case, Garza v. Hargan, Kavanaugh dissented from the full appellate court's opinion, arguing that a "right for unlawful immigrant minors in U.S. government detention to obtain immediate abortion on demand" was "ultimately based on a constitutional principle as novel as it is wrong."

This opinion would presumably anger those who support abortion rights. They would want a justice who "would follow Roe v. Wade faithfully and fully." Supporters of a woman's right to choose would want a justice who would pledge to follow Roe because "it's been reaffirmed many times, including in Planned Parenthood v. Casey." In that case, they would want a justice like … Brett Kavanaugh, who said those words in 2006 during his Senate confirmation hearings the first time around, when he was named to the D.C. Circuit.

Perhaps Brett Kavanaugh is, as all nominees are to some degree, predictably unpredictable — at least as a future justice. But as a nominee? The signs were all there.

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