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Trump Nominates Brett Kavanaugh to the Supreme Court. Now What?

The 53-year-old conservative currently sits on the federal appeals court in Washington, D.C.

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Doug Mills/The New York Times/Redux

President Trump has nominated 53-year-old Brett Kavanaugh as the next justice to serve on the Supreme Court.

“Judge Kavanaugh has impeccable credentials, unsurpassed qualifications and a proven commitment to equal justice under the law,“ Trump said while making the announcement at the White House, going on to describe him as a “judge’s judge” and “one of the finest and sharpest legal minds of our time.”

“This incredibly qualified nominee deserves a swift confirmation and robust bipartisan support,” the president added.

The nomination comes less than two weeks after Justice Anthony Kennedy announced he would step down from the court at the end of July. Kennedy was seen as one of the more moderate conservatives on the bench, and Kavanaugh, should he be confirmed, is expected to move the court further to the right, likely throwing reproductive rights and several other key issues into contention. Kavanaugh was selected from a list of candidates Trump had narrowed down to four in the week preceding the announcement. On Friday, John Roberts of Fox News reported that the White House had prepared rollout packages for Kavanaugh, Raymond Kethledge, Amy Coney Barrett and Thomas Hardiman. By Monday morning, Kavanaugh and Hardiman had emerged as the favorites in what many saw as a gross display of pageantry.

Kavanaugh currently sits on the federal court of appeals in Washington, D.C., and was once a law clerk for Justice Kennedy, the man he has been nominated to replace. In the ’90s, he worked for Kenneth Starr, and helped compile the report that led to President Clinton’s impeachment. Despite his involvement in the Clinton scandal, Kavanaugh, who also served in the George W. Bush administration, would later argue that presidents should be immune to criminal investigations, a key point considering the ongoing Russia investigation by Special Counsel Robert Mueller.

“With Kavanaugh, we have someone who has very extreme views on presidential authority,” American Constitution Society president Caroline Fredrickson tells Rolling Stone. “Kavanaugh presents very clearly the flexibility on the right when it comes to who is in control of government. When Bill Clinton was president, he believed in a firm check on power and he thought presidents could be indicted, and then as soon as there was a Republican president, he said it was unconstitutional.”

Regarding Roe v. Wade, Kavanaugh hasn’t said much. Some pro-life groups have applauded him as a Constitutionalist, while others are worried that a history of cautious rulings may keep him from voting for something as controversial as overturning Roe. Some legal experts, however, feel like Trump’s nominee voting to overturn the decision is a foregone conclusion. Fredrickson notes that all of the candidates “passed that test,” while University of Chicago law professor Geoffrey Stone says he’d “be surprised if any of [the candidates] didn’t vote to overrule Roe.”

Outside of the background of the candidates, Trump’s methodology for selecting his nominee was also a topic of debate in the days leading up to the decision. Trump has said that he wanted the nominee to have a body of academic writing, but wasn’t interested in reading any of it. A report from Politico last week shed light on how prominently optics would play into the president’s decision. The Washington Post reported last week that Trump wanted to pick someone with a “name-brand” degree who is “not weak.” On Monday, the Wall Street Journal reported that Trump didn’t like the “energy” of Kethledge. The process has been unorthodox largely because the business of the court, like several of his responsibilities as president, is outside Trump’s area of expertise. The morning of the announcement, he tweeted that he has “long heard” that nominating Supreme Court justices is an important task, as if this is something he hadn’t ascertained on his own.

The nomination is already the second in 17 months for President Trump, who, barely a week after he was inaugurated, nominated Neil Gorsuch to fill the seat left vacant by Antonin Scalia. Barack Obama only nominated two justices – Sonia Sotomayor and Elena Kagan – in his eight years in office. Though Scalia died with almost a year left in Obama’s second term, Senate Republicans refused to consider confirming his nominee, Merrick Garland, on the grounds that the vote should be delayed in an election year. Senate Democrats are now using the same rationale in their effort to push a vote to confirm the nominee to replace Kennedy until after the November midterms. On Monday, McConnell laughed at the idea that Democrats were preemptively opposing Trump’s nominee.

“Justice Kennedy just announced his retirement and they’re talking about the destruction of the Constitution?” McConnell said. “Please.” In 2016, McConnell said the Senate should not vote on Scalia’s replacement less than 24 hours after the conservative justice died.

But unlike in 2016, the opposition party does not control the Senate, and Democrats would need at least two Republican senators to vote against Kavanaugh to stymie the nomination. The two conservatives most likely to flip are Susan Collins (R-ME) and Lisa Murkowski (R-AK), both of whom have been supportive of abortion rights, but some red-state Democrats could also split from the party and vote to confirm the nominee. Doug Jones (D-AL), who was not in office when the Senate voted to confirm Gorsuch – you might remember him as the man who beat Roy Moore in last year’s special election – said Sunday that he is open to voting for whomever Trump nominates.

Now that Kavanaugh has been nominated, Republicans will race to confirm him before the midterms, while Democrats will try to convince a handful of senators that it’s in everyone’s best interest to wait until the people have spoken this fall.

“If Trump were to nominate Kavanaugh, you would have a typically contentious fight,” American University law professor Herman Schwartz told Rolling Stone prior to the announcement. On Monday night, the president rang the bell.

Andy Kroll contributed to this report.

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