With President Trump preparing to announce his Supreme Court pick on Monday at 9 pm and both the “smart money” and the Washington rumor mill are in agreement on whom Trump’s pick will be: Brett Kavanaugh, a US circuit judge for the US Court of Appeals for the District of Columbia.
Online betting markets heavily favor Kavanaugh over the next-likeliest pick, Amy Coney Barrett, a US circuit judge on the US Court of Appeals for the Seventh Circuit.
However, with President Trump’s final decision still a few days away, social conservatives are mounting a campaign to push back against Kavanaugh’s candidacy, saying he’s “too moderate” to occupy a seat on the court that will determine the outcome of crucial issues like the overturning of Roe V. Wade, according to the Hill.
While Kavanaugh is well respected in Washington’s GOP circles, in part for having worked in the George W. Bush White House before being nominated to his current position in 2006, a whisper campaign against the 53-year-old judge could undercut his chances for being tapped as Kennedy’s successor, particularly because Trump is wary of sparking a fight with his base and with anti-abortion activists heading into the November midterm elections.
Conservatives take issue with Kavanaugh’s decisions on ObamaCare and abortion-related cases. In a 2011 opinion, he suggested that the Affordable Care Act’s individual mandate could be made a “tax,” providing a “roadmap” to a 2012 Supreme Court ruling that Republicans believe saved the 2010 healthcare law.
According to Politico, Kavanaugh’s conservative opponents are comparing him with Chief Justice John Roberts, arguing that both men are suspected of being “not reliably conservative.” One critic who has publicly spoken out against Kavanaugh is former Virginia Attorney General Ken Cuccinelli, who has said he’d prefer either Amy Coney Barrett or Republican Sen. Mike Lee, two of Cavanaugh’s top contenders. Cuccinelli pointed to Kavanaugh’s ruling on “Garza v. Hargan” – better known as the “teen-immigration abortion case” – as the justification for his opposition.
However, for Kavanaugh’s critics, his actions in the teen-immigrant abortion case exude a tendency toward caution and compromise that could signal an unwillingness to make waves on the Supreme Court — and they worry that hesitancy could extend to reversing longstanding precedents, such as Roe v. Wade.
“This case exemplifies why Kavanaugh is not the best available Supreme Court prospect,” Philip Jauregui of the Judicial Action Group wrote in a memo to conservative leaders last week. The memo called Kavanaugh “certainly not the worst judge” in the case, but said his opinion dissenting from the court’s ultimate decision to permit the abortion was not “as constitutionally principled” as another conservative judge who considered the issue.
Few conservatives have been willing to broadcast their view that Kavanaugh is likely to be less strident on some polarizing issues than other potential nominees. One who has made that view public is former Virginia Attorney General Ken Cuccinelli, who said in an interview Friday that he is troubled by Kavanaugh’s ultimate opinion in the teen-immigration abortion case, known as Garza v. Hargan.
“He made a statement that really gives one some pause about what he’d do when he’s on the Supreme Court as opposed to an appellate court,” Cuccinelli said. “His view there was just quite troubling.”
“I really feel like Kavanaugh’s just another Roberts,” the former Virginia AG said. “He came straight out of the Ivy League to Washington, was never outside the beltway and went to the Bush White House. To paraphrase, Sen. Feinstein, the Bush speaks loudly in him.”
President Trump tweeted this morning that he will be making his final decision “soon”, which means Kavanaugh’s opponents only have a couple of days – at the most – to scuttle his candidacy.
Big decision will soon be made on our next Justice of the Supreme Court!
— Donald J. Trump (@realDonaldTrump) July 7, 2018
Of course, no matter which candidate Trump chooses, his opponents on the life will fill the streets in protest as if Roe v. Wade was on the verge of being struck down.