A U.S. circuit court judge who is seen inside the White House as a front-runner for the Supreme Court nomination is drawing criticism from conservatives who fear he would be more likely than others on President Trump’s list to gravitate toward the court’s ideological middle if appointed.
Sources close to the nomination process, including at least two influential conservative groups, have told the White House counsel’s office they are concerned about D.C. Circuit Court Judge Brett Kavanaugh, who Trump interviewed on Monday. The former clerk to retiring Justice Anthony Kennedy was added in November to a list of judges the president has promised to draw from for Supreme Court nominations, and he has since emerged as one of four top contenders for the latest vacancy.
The debate over Kavanaugh first began when he was added to that list, according to two sources familiar with the matter. At the urging of Leonard Leo, the Federalist Society leader who the White House has relied heavily on for assistance with judicial appointments, the sources said Kavanaugh’s name was included among five additions last fall as part of an effort to help pressure Kennedy into retirement. The move was immediately met with protest from anti-abortion groups who had reservations about the Bush appointee and what his reasoning might look like if given the opportunity to overturn Roe v. Wade.
“There are concerns in the pro-life community that his decisions in some cases mean he’s not as solidly pro-life as we would like him to be,” a source close to the White House told the Washington Examiner.
“I want to make clear that I admire Judge Kavanaugh and that my criticisms of him are only at the margins, when compared with other potential nominees,” Quin Hillyer, a veteran conservative columnist who has written extensively on the courts. But others on the list grade slightly higher.
One high-profile case consistently cited by those who prefer other candidates on the president’s short list was Seven Sky v. Holder, a 2011 challenge to the constitutionality of Obamacare, in which Kavanaugh wrote a 65-page dissent that irritated conservative purists.
“When I read that opinion … I thought it was convoluted nonsense,” Hillyer said of Kavanaugh’s dissent.
“He labeled the individual mandate a tax for purposes of a law called the Anti-Injunction Act,” Hillyer explained, adding that Kavanaugh “missed the plain language involved, and his contention was eventually rejected by all nine justices on the Supreme Court, which showed his process, analysis, and reasoning was completely unpersuasive.”
Hillyer said Kavanaugh would still make “a pretty good justice,” despite his tendency to “torture the meaning of the text sometimes.”
“On a scale of 100, what I’m doing is making distinctions between a 97 and a 92,” he said.
J.D. Vance, a student of Kavanaugh’s at Yale Law and author of the 2016 hit book Hillbilly Elegy, said in an op-ed on Tuesday that criticism of his former professor’s reasoning in two cases involving Obamacare was misguided.
“Fealty to principle sometimes requires setting aside one’s own preferences,” Vance wrote in the Wall Street Journal, arguing that Kavanaugh “aimed to rule narrowly and fairly rather than politically” in both cases.
But others have pointed to Kavanaugh’s dissent in a third case, this spring, that concerned the Trump administration’s effort to prevent a pregnant undocumented teenager from obtaining an abortion while in government custody at the border. Kavanaugh argued that the young women’s abortion should have been delayed until immigration officials could determine if a relative already in the U.S. could take her to terminate her pregnancy so as to clear the federal government of any involvement.
“It surely seems reasonable for the United States to think that transfer to a sponsor would be better than forcing the minor to make the decision in an isolated detention camp with no support network available,” he wrote in Garza v. Hargan.
Kavanaugh’s opinion in the case inspired the Judicial Action Group, a conservative group backing Judge Amy Coney Barrett for the Supreme Court nomination, to circulate a memo to other White House allies that described Kavanaugh as one of the “worst prospects” among those being considered for the high court. The group asserted that Kavanaugh made “unnecessary concessions in an illegal alien minor abortion case” and demonstrated he was not “as constitutionally principled” as one of his conservative colleagues on the District’s federal court.
Though they have privately vented about Kavanaugh and submitted concerns to the White House, no conservative groups have explicitly opposed him in public statements.
“We’ve been talking about justices in the mold of [the late Justice Antonin] Scalia, and it seems like some of the other candidates are higher up on the food chain than others,” said one staffer at a Washington-based conservative organization.
A senior White House official said a handful of possible Supreme Court nominees from the president’s list of 25 “have drawn responses, feedback, and input” from Republican lawmakers and outside groups.
“The president is listening particularly to senators, but he’s also looking at the qualifications, the intellect, and broader things that equip somebody to be a member of the Supreme Court,” the official said.
Barrett, who has also met with Trump and is being pushed hard by conservative Catholic intellectuals, is seen as Kavanaugh’s greatest obstacle to securing the nomination. One former administration official said Kavanaugh is heavily favored by White House counsel Don McGahn, but Barrett would unquestionably enjoy the support of conservative groups that will play a major role in generating voter enthusiasm for the midterm elections and pressuring Senate Democrats into supporting the president’s Supreme Court nominee.
However, Barrett would face her own challenges in the confirmation process. At least one Republican senator, Susan Collins of Maine, has signaled she would be reluctant to support any nominee who has displayed “hostility” toward Roe v. Wade and other rulings on abortion access. Her colleague, Sen. Lisa Murkowski of Alaska, also has a record of supporting reproductive rights, creating a possible confirmation challenge for a devout anti-abortion Catholic like Barrett should she be nominated.
The White House declined to comment in a press briefing Monday, following Trump’s meetings with four possible nominees, on who the president favored and whether he intends to interview additional candidates this week. Trump has said he will reveal his second Supreme Court nominee on July 9, at which point his team will begin the process of securing bipartisan support on Capitol Hill.
“There’s been a level of outreach already, but that will begin in earnest when there’s an actual nominee and we have a record and background and vision to defend,” said the senior White House official.
