Trump Picks Kavanaugh To Replace Retiring Justice Kennedy President Trump's Supreme Court pick is almost certainly going to be more conservative than Anthony Kennedy, the justice who is retiring at the end of July.
NPR logo

Trump Picks Kavanaugh To Replace Retiring Justice Kennedy

  • Download
  • <iframe src="https://www.npr.org/player/embed/627588065/627588068" width="100%" height="290" frameborder="0" scrolling="no" title="NPR embedded audio player">
  • Transcript
Trump Picks Kavanaugh To Replace Retiring Justice Kennedy

Law

Trump Picks Kavanaugh To Replace Retiring Justice Kennedy

Trump Picks Kavanaugh To Replace Retiring Justice Kennedy

  • Download
  • <iframe src="https://www.npr.org/player/embed/627588065/627588068" width="100%" height="290" frameborder="0" scrolling="no" title="NPR embedded audio player">
  • Transcript

President Trump's Supreme Court pick is almost certainly going to be more conservative than Anthony Kennedy, the justice who is retiring at the end of July.

NOEL KING, HOST:

President Trump has picked Judge Brett Kavanaugh as his second nominee to the Supreme Court. Now, interestingly, Kavanaugh was not on President Trump's original list of potential Supreme Court picks. But then in November of 2017, in anticipation of a possible second Supreme Court appointment, his name was added to the list. NPR's legal affairs correspondent Nina Totenberg has the story.

NINA TOTENBERG, BYLINE: Trump may have campaigned as an outsider, but Kavanaugh is a creature of Washington with deep political roots in Republican politics. In a city full of people clawing their way to the top, Kavanaugh has risen steadily upwards through hard work and without appearing driven. His performance last night was Exhibit A in why he's been so successful. He was witty, warm, graceful and gracious, teased his two daughters, and praised his wife and his mother. Indeed, he hit all the right notes for a guy who knows that an army of women's groups are lining up in opposition to his nomination, in part because the president who's nominated him pledged during the 2016 campaign to name Supreme Court justices who would overrule the Supreme Court's 1973 abortion decision Roe v. Wade. Kavanaugh began by pointing to his mother, a onetime public high school teacher turned lawyer and judge, or as the nominee put it last night...

(SOUNDBITE OF ARCHIVED RECORDING)

BRETT KAVANAUGH: The president introduced me tonight as Judge Kavanaugh, but to me, that title always belonged to my mom.

TOTENBERG: He went on to note that he'd taught hundreds of students at Harvard Law School over the years, pointedly observing that the dean who hired him was Elena Kagan, later named to the Supreme Court by Barack Obama. And he said he was proud of the fact that in his 12 years on the appeals court, a majority of his law clerks have been women. Even as he was saying this, protesters were rallying outside the Supreme Court, demanding that Roe be protected.

(SOUNDBITE OF PROTEST)

UNIDENTIFIED PROTESTERS: (Chanting) Protect Roe now. Protect Roe now.

TOTENBERG: If anyone is prepared to face the onslaught that faces him, it is Brett Kavanaugh. After clerking for Justice Anthony Kennedy, the man he's been nominated to succeed, Kavanaugh worked for special prosecutor Kenneth Starr investigating President Clinton. After a brief stint in private practice, he then went to work for the Bush-Cheney campaign, was a foot soldier in the Florida election recount and worked on the celebrated Bush v. Gore Supreme Court case that decided the outcome of the 2000 election. He went on to serve in top positions in the Bush White House, was nominated in 2003 for the federal appeals court in D.C., but faced strong opposition from Democrats and was not confirmed until 2006. Even then, it was a tough haul with hostile questioning from some of the same Democrats who will lead the opposition this time, Democrats like Senate Democratic leader Chuck Schumer, who asked him 12 years ago if he considered Roe to be an abomination.

(SOUNDBITE OF ARCHIVED RECORDING)

KAVANAUGH: On the question of Roe v. Wade, if confirmed to the D.C. Circuit, I would follow Roe v. Wade faithfully and fully. That would be binding precedent of the court. It's been decided by the Supreme Court.

CHUCK SCHUMER: I asked you your own opinion.

KAVANAUGH: And I'm saying if I were confirmed to the D.C. Circuit, Senator, I would follow would follow it. It's been reaffirmed many times.

SCHUMER: I understand, but what is your opinion?

KAVANAUGH: I don't think it would be appropriate for me to give a...

SCHUMER: Not the going to answer the question.

KAVANAUGH: ...Personal view on that case.

TOTENBERG: As tough as the questioning was then, Supreme Court precedent is binding on lower court judges, but not on the Supreme Court itself, so expect the questioning will be far more intense this time. Kavanaugh's lengthy written record, however, is not on abortion but most other legal topics of the day. At 53, he's written some 300 opinions while on the federal appeals court here, where he has a record as an extremely skilled and conservative judge. And although he's never ruled directly on abortion, he did write a recent decision that temporarily barred a pregnant teenager who was in immigration custody from obtaining an abortion. The decision for a three-judge court was subsequently overturned by the full court over Kavanaugh's dissent.

On many other issues, he's been on the conservative side, sometimes slicing the legal salami thinner than some hard-line conservatives would've liked, as he did on the question of Obamacare. On questions involving government regulation, he often, but not always, sought to limit or throw out Obama-era environmental regulations. And on a number of high-profile cases, he signed onto or authored opinions deferring to presidential power. Indeed, just over a decade after he helped write the Starr report, leading to the impeachment of President Clinton, he wrote a law review article declaring that after serving in the Bush White House, he had concluded that presidents should be immune not just from civil lawsuits, but also from criminal investigation while they're in office. Such views could have enormous implications for the Mueller investigation of President Trump, including the question of whether the president can be subpoenaed to testify about his possible involvement in criminal activity.

Nina Totenberg, NPR News, Washington.

(SOUNDBITE OF PHILHARMONIA ORCHESTRA PERFORMANCE OF OLIVER KNUSSEN'S "SYMPHONY NO. 3, OP. 18: ALLEGRO CON FUOCO")

Copyright © 2018 NPR. All rights reserved. Visit our website terms of use and permissions pages at www.npr.org for further information.

NPR transcripts are created on a rush deadline by Verb8tm, Inc., an NPR contractor, and produced using a proprietary transcription process developed with NPR. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.