My money’s on Judge Amy Coney Barrett of the U.S. Court of Appeals for the Seventh Circuit, but, truth is, she’d be the dark horse pick for the Supreme Court—a pre-midterm game-changer a la Sen. John McCain’s choice of Sarah Palin as running mate. Smart money continues to be on Brett Kavanaugh, of the U.S. Court of Appeals for the District of Columbia, and, to a lesser extent, Raymond Kethledge of the U.S. Court of Appeals for the Sixth Circuit—that’s Kentucky, Michigan, Ohio, and Tennessee.
We’ll limit this analysis to Kavanaugh, a complement to my earlier post naming Barrett as our predicted pick, as NPR’s not-to-be-doubted legal affairs correspondent Nina Totenberg has reported that Trump’s narrowed the field to Barrett and Kavanaugh.
Totenberg also noted sources tell her that while Trump wants Barrett, he’s concerned about her lack of record. Indeed, consistent conservative rulings over the past 12 years make Kavanaugh a well-known quantity. But that record’s a double-edged sword: There’s a lot more for conservatives to criticize. Perception is, Barrett’s much more conservative, at least socially. So, which will prevail—judicial experience or the lack of judicial baggage?
Kavanaugh’s been on the bench since 2006. Note, though, that it took three years to confirm him: George W. Bush nominated him in 2003. He’s been a sure name on the right’s Supreme Court wish list for years. Kavanaugh’s credentials start with high school: He attended Georgetown Prep, one of the most selective prep schools in the country, just as Trump’s first pick Neil Gorsuch did, then headed to Yale for both college and law school. Like the eight sitting justices, he boasts Ivy League degrees, one of Gorsuch’s strong points, according to Trump.
Also in Kavanaugh’s favor: Senate Republicans are drawn not only to his consistent conservative record but to the man himself, as Kavanaugh alone is D.C.-based. He served in the George W. Bush White House Counsel’s Office and is well known to political as well as legal decision-makers, like the Federalist Society’s Leonard Leo.
How could the GOP’s backing possibly count against Kavanaugh?
Trump is fond of zagging where the GOP asks him to zig; he even likes to brag about it, invoking anti-establishment and “outsider” language. From the moment of Justice Anthony Kennedy’s resignation announcement, the buzz—on Twitter, in the Los Angeles Times, etc.—was that Senate Republicans want Kavanaugh. Trump also likes to play kingmaker and courts loyalty; he won’t have “made” Kavanaugh, whereas Trump’s responsible for launching Barrett from law school professor to federal appellate judge.
Trump also relishes reality TV-style competitions and upsets. There’s little drama or flair associated with picking a second white man who’s been heir apparent to a Supreme Court seat for a decade. There’s also no percentage in an establishment pick when it comes to Trump’s base. To Trump’s mind, Barrett may be a panacea for his issues with women, a way to make gains with women and renew support from base voters, particularly conservative Christians.
Many outlets have reduced the contest to one between social conservatives, represented by Barrett’s religiosity, and the more staid Republican establishment, aptly incarnated in Kavanaugh. It’s not that simple, of course, but the contrast isn’t wrong. And we know where Trump comes down when given the choice between courting the Christian right and appeasing the Republican establishment he disregards at every turn.