Trump nominates Kavanaugh for U.S. Supreme Court over Kethledge
Washington — President Donald Trump on Monday night nominated federal appeals Judge Brett Kavanaugh for the U.S. Supreme Court over Judge Raymond Kethledge of Michigan and two other finalists.
During the prime-time White House announcement, Trump said he intends to nominate Kavanaugh to replace retiring Justice Anthony Kennedy, a conservative-leaning jurist who was viewed as a swing vote among the nine justices.
Trump framed his choice in the tradition of President Ronald Reagan.
“What matters is not a judge’s political views but whether they can set aside those views to do what the law and the Constitution require. I am pleased to say I have found without a doubt such a person,” he said.
The president praised Kavanaugh’s “impeccable credentials, unsurpassed qualifications and a proven commitment to equal justice under the law.”
“Throughout legal circles he is considered a judge’s judge, a true thought leader among his peers. He’s a brilliant judge with a clear and effective writing style universally regarded as one of the finest and sharpest legal minds of our time.”
Kavanaugh, 53, serves on the U.S. Court of Appeals for the District of Columbia Circuit and previously worked in the counsel's office at the White House under President George W. Bush. He clerked for Kennedy from 1993-1994.
Senate Minority Leader Chuck Schumer, D-New York, promised a fierce confirmation fight in a chamber where Republicans hold a slim majority.
“In selecting Judge Brett Kavanaugh for the Supreme Court, President Trump has put reproductive rights and freedoms and health care protections for millions of Americans on the judicial chopping block," Schumer said in a Monday night statement. "His own writings make clear that he would rule against reproductive rights and freedoms, and that he would welcome challenges to the constitutionality of the Affordable Care Act."
Kavanaugh praised Kennedy’s career and said he was “deeply honored” to be nominated to his seat on the high court. He was joined at the White House by his parents, his wife and two daughters.
Kavanaugh serves meals to the homeless and coaches a youth basketball team, whose players call him “Coach K.” He said his mother was a prosecutor at a time when there were few female prosecutors.
“The president introduced me tonight as Judge Kavanaugh. To me, that title will always belong to my mom," said Kavanaugh, who later added that he was hired to teach at the Harvard Law School by then-Dean Elena Kagan, who is now a President Barack Obama-nominated justice.
“I revere the Constitution. I believe an independent judiciary is the crown jewel of the republic," he said, adding that he would approach every case with an open mind.
Advisers to Trump have reportedly worried that Kavanaugh's long paper trail from his Bush years could be a liability during the confirmation process, providing potential fodder for Democratic critics.
Choice stirs divided reaction
The nomination presents Trump with his second opportunity to reshape the high court for generations with a consistently conservative voice. Neil Gorsuch of Colorado was confirmed last year to replace the late Justice Antonin Scalia, a conservative jurist.
“He’s terrific. I think he’s a great choice,” said Sen Mike Lee, R-Utah, who was on Trump’s list of potential candidates.
Sen. Ted Cruz, R-Texas, told reporters that Kavanaugh has a long record and predicted the Senate would confirm him by October when the court’s next session starts.
But Schumer said the stakes are too high for him to concede.
"I will oppose Judge Kavanaugh’s nomination with everything I have, and I hope a bipartisan majority will do the same," Schumer said. "The stakes are simply too high for anything less."
Sen. Gary Peters, D-Michigan, said he has concerns over the nomination.
“The Supreme Court’s actions have real and lasting impacts on peoples’ lives – from a woman’s freedom to make her own health decisions and protections for Americans with pre-existing conditions to voting rights and the ability for workers to negotiate better wages and working conditions. I will be considering Judge Kavanaugh’s nomination, but from what I know thus far, I already have serious concerns about his record of placing corporate interests over consumers, workers and the health of our environment.”
Republicans control 51 seats in the Senate and would need Vice President Mike Pence's tie-breaking vote to confirm the nomination solely with GOP votes. Republican Sen. John McCain of Arizona is at home fighting cancer.
Because of McCain's absence, the GOP can ill afford to lose any votes unless they can get support from Democrats in states the president overwhelmingly won in 2016, such as Joe Manchin of West Virginia and Joe Donnelly of Indiana.
Kethledge, who lives in Oakland County, was among four finalists that Trump weighed in recent days, according to news reports. Trump personally met with the 51-year-old judge at the White House last Monday, according to Kethledge's friends and news reports.
The other finalists were Judges Thomas Hardiman, 53, of the 3rd Circuit U.S. Court of Appeals and Amy Coney Barrett, 46, of the 7th Circuit U.S. Court of Appeals.
Kethledge and Joan Larsen — both serving on the 6th Circuit U.S. Court of Appeals — were among those on a list of 25 potential candidates considered for the seat.
“I think both would receive serious consideration, if Trump has another vacancy to fill,” said Carl Tobias, a professor at the University of Richmond School of Law who studies the federal judiciary selection process.
Bush nominated Kavanaugh to the D.C. Circuit in 2003, and the Senate confirmed him in 2006. He graduated from Yale University and Yale Law School.
Kavanaugh participated in the investigation of President Bill Clinton led by independent counsel Kenneth W. Starr and helped write the report that led to the impeachment of Clinton but not his removal from office. Democrats are expected to focus on his views on impeachment and involvement with the report, among other issues.
The potential candidates on Trump's list of 25 were vetted by the Federalist Society, a conservative group that helped craft Trump’s initial Supreme Court nominee list when he ran for president in 2016. Larsen and Kethledge were also named on that list.
Reservations on Kethledge
A Monday report by the Wall Street Journal said Trump had expressed reservations about Kethledge, suggesting he didn't show the energy level he likes to see in his appointees, citing a person close to the White House.
"Low energy" is not how co-workers, friends and former clerks describe Kethledge, who spent seven years writing a book, "Lead Yourself First," with co-author Michael Erwin while working full time as a judge and helping to raise two children.
Erwin, a friend, praised Kethledge's perseverance through the "arduous" process, describing him as "one of the most intense people I've met in my life."
"I studied psychology in graduate school, so I understand that introverts and extroverts show their enthusiasm differently," Erwin said.
"Ray’s energy shines through in many ways, especially when he is working on a project — like 'Lead Yourself First' or an opinion. It’s his introverted personality that empowers him to think and write with clarity and conviction — which is exactly what his profession demands."
Michigan has not had a justice on the Supreme Court since President Franklin Roosevelt in 1940 appointed former Gov. Frank Murphy, who served until his death in 1949.
Kethledge formerly clerked for Kennedy, as did Gorsuch. He was appointed to the 6th Circuit by Republican President George W. Bush and confirmed in June 2008.
He briefly served as counsel for Ford Motor Co. from 2001-02 before co-founding the firm now known as Bush Seyferth & Paige in Troy.
Some conservative critics had questioned Kethledge's record on immigration issues.
A former Kethledge clerk, Troy attorney Roger Meyers, said Kethledge has adjudicated nearly 120 immigration cases during his 10 years on the court and affirmed the Board of Immigration Appeals in 97 percent of those cases.
"Judge Kethledge approaches immigration cases the same way he approaches every case: by focusing on the ordinary meaning of the laws that were enacted by the politically accountable branches, without fear or favor," Meyers wrote last week in the National Review.
If immigration laws are "not as stringent as some may prefer, it speaks to the need to address the laws themselves" — by the legislative or executive branches, he said.
Female judges considered
Trump previously said he had two women on his short list, which many guessed to be Larsen and Barrett. Both of them formerly clerked for the late Justice Antonin Scalia, whom the president has praised.
Larsen, 49, was a longtime professor at the University of Michigan Law School and served two years on the Michigan Supreme Court before her confirmation last year to the 6th U.S. Circuit Court of Appeals.
Barrett, a favorite of social conservatives, was a Notre Dame Law School professor until her confirmation last year to the 7th U.S. Circuit Court of Appeals.
Some advisers had reportedly raised concerns with Trump about Barrett's ability to win confirmation because of some of her views on abortion and other issues.
The nominee is expected to begin meeting this week with senators on Capitol Hill. The nominee will be escorted on the Hill by former U.S. Sen. Jon Kyl, R-Arizona, White House spokesman Raj Shah said.
Kyl, who served in the Senate from 1995-2013, sat on the Senate Judiciary Committee as it considered four of the last five justices confirmed to the high court, according to the White House.
Schumer said affordable health care and access to legal abortion "hang in the balance."
“It is near-impossible to imagine that President Trump would select a nominee who isn’t hostile to our health care law and health care for millions, and millions and millions of Americans. Who isn’t hostile to a woman’s freedom to make her own health care decisions,” Schumer said Monday on the Senate floor.
Senate Majority Leader Mitch McConnell of Kentucky said senators should evaluate the nominee “fairly” based on his or her qualifications.
"Decade after decade, nominee after nominee, the far left script hardly changes at all. Anyone and everyone a Republican president nominates to the Supreme Court is some kind of threat to the Republic," McConnell said on the floor.
"No matter their qualifications, no matter their record, no matter their reputation, it's the same hyperbole."
Pressure on Democrats
Monday’s nomination is expected to put pressure on Democratic senators seeking re-election in states won by President Donald Trump, including Sen. Debbie Stabenow of Lansing.
Stabenow said the nomination has raised concerns for her about the ramifications for health care in general, given recent court cases involving whether preexisting conditions should be covered, as well as "a woman's right to choose."
"This moment is very consequential for our country, and we need to be very sober, and serious and understand that replacing the person who is most often the deciding vote on the United States Supreme Court is something folks shouldn’t be playing games with," she said in an interview prior to Monday's announcement.
"What should be happening is a bipartisan effort to have a mainstream, consensus candidate rather than an extreme ideologue."
Conservative groups such as the Judicial Crisis Network are expected to spend millions to promote Trump's nominee and put pressure on vulnerable Democrats.
From the other side, the liberal group Demand Justice has said it plans to spend $5 million to oppose the nominee.
White House officials have said they hope to have a Senate vote scheduled by Labor Day, so the nominee can join the court in time for its October session.