WASHINGTON — Brett Kavanaugh, a 53-year-old, Ivy-league educated appellate court judge and former staff secretary to President George W. Bush, was nominated by President Trump to succeed Anthony Kennedy on the Supreme Court.
If confirmed, he will likely solidify the conservative base on the Supreme Court and a five-vote majority. Potentially at stake are abortion and LGBT rights, the Affordable Care Act and even net neutrality.
The White House managed to keep Kavanaugh’s selection a secret until just before Trump held a heavily promoted 9 p.m. ET prime time event to reveal his choice, using a reality show technique to drum up interest and viewership.
“My judicial philosophy is straightforward. A judge must be independent and must interpret the law, not make the law,” Kavanaugh said shortly after Trump introduced him. Kavanaugh was joined by his wife, Ashley, and two daughters.
During much of the day on Monday, reporters were kept guessing from among four contenders, until news broke that Kavanaugh was leaving the D.C. Circuit with an extensive security detail while another prospect, Amy Coney Barrett, was still at home in Indiana. Another prospect, Raymond Kethledge, was also reported to be at home in Michigan.
Kavanaugh’s pick had drawn some opposition from the right in the weeks since he emerged as a front-runner, in large part because he was viewed as an establishment choice. But he has an extensive record and paper trail of supporting conservative causes, including a dissent in a recent case in which the D.C. Circuit ruled that an undocumented immigrant minor be given access to an abortion. He also ruled against the contraceptive mandate in the Affordable Care Act, siding with religious groups who argued that it infringed on their liberties.
He also has experience working with an independent counsel, having worked for Kenneth Starr as investigated President Bill Clinton in the 1990s. He worked on Bush’s 2000 presidential campaign and the recount, before joining the White House staff. He was nominated to D.C. Circuit in 2005 and confirmed in 2006.
As Special Counsel Robert Mueller investigates possible collusion between the Trump campaign and the Russians in the 2016 election, much attention has been paid to a more recent Kavanaugh writing in which he argued that “Congress might consider a law exempting a president — while in office — from criminal prosecution and investigation, including from questioning by federal prosecutors or defense counsel.”
Kavanaugh also has taken what he has characterized as an “expansive” view of the First Amendment when it comes to government regulation of communications and the internet. He dissented from a 2010 appellate ruling that held that the FCC could prohibit exclusive contracts between cable operators and affiliated cable networks.
In the case, brought by Cablevision, Kavanaugh wrote that “a governmental desire that every programming distributor carry the same networks can no more justify interference with Cablevision’s First Amendment rights than it could justify the Government telling Barnes & Noble what publisher’s books it had to sell, or telling a bookstore-affiliated publishing company that it had to make certain books available to all bookstores, or telling a movie production company what theaters it had to contract with in selling its movie, or telling the Washington Post that its best political columnist or reporter had to be shared with other competing newspapers.”
He continued that line of argument last year, when he wrote a dissent to the D.C. Circuit’s decision to uphold the FCC’s net neutrality rules. He said that only Congress could impose such regulation, but that the rules themselves violated the First Amendment. The FCC has since repealed most of those rules, but the issue could still make its way to the Supreme Court.
That view has tremendous implications not just for communications and technology, but for industry that has long complained about regulation by administrative agencies. All of Trump’s prospects were expected to give less deference to the way that independent regulators interpreted federal law. Kavanaugh has a record of siding extensively with industry challenges to those regulations, something already has riled environmental and labor groups.
Kavanaugh also sided with Comcast as it fought the FCC’s determination that the cable operator violated program carriage rules when it refused to carry Tennis Channel on more popular tiers.
The battle over Trump’s nominee began before the announcement, as interest groups already began ad campaigns for and against the prospect of moving the court rightward. Kavanaugh was a clerk for Kennedy, but his endorsement from groups like the Federalist Society have convinced many court watchers that he would be more reliably conservative rather than a swing vote.
Within minutes of Trump’s announcement, Sen. Chuck Schumer (D-N.Y.) pledged to fight the nomination.
“This nomination could alter the balance of the court in favor of powerful special interests and against working families for a generation, and would take away labor, civil, and human rights from millions of Americans,” he said. “We cannot let that happen. If we can successfully block this nomination, it could lead to a more independent, moderate selection that both parties could support.”
Sarah Kate Ellis, president and CEO of GLAAD, said that “like Neil Gorsuch before him, Kavanaugh is an ideologically driven pick designed to create an activist Supreme Court that will undermine rights and protections for women, LGBTQ people, immigrants, and all vulnerable people. Americans do not want or need 40 more years of Trump’s values.”
Senate Majority Leader Mitch McConnell said on the Senate floor that the fears being raised are “far left rhetoric” that “comes out every single time. The apocalypse never comes. Americans see beyond this far left mongering, this fear mongering that they have tried over and over again for 40 years. Senators should do the same.”