The usual caveat, that a loose-cannon president might do anything at any given moment, applies. But various news stories today point to the choice as being essentially a two-person race with Kavanaugh seemingly having the inside track. The strongest evidence comes from CNBC, which has sources claiming that Trump was hinting about him this week:
During the July 4 picnic at the White House, Trump suggested to friends and some external advisors that he had already made up his mind about whom he will pick to join the high court, the person said on the condition of anonymity due to the sensitive nature of the ongoing deliberations.
That source, along with another person familiar with the negotiations, said the president gave strong indications that he prefers D.C. Circuit Court of Appeals Judge Brett Kavanaugh.
WaPo has two sources claiming that the short list is down to Kavanaugh and Kethledge. NPR has two sources claiming it’s down to Kavanaugh and Barrett. Kavanaugh also has an advocate in White House counsel Don McGahn, who’s leading the selection process, and seems to be the target of all the oppo being pushed by fans of the competition, underscoring his frontrunner status.
The chief selling point for Kavanaugh is that, of the three finalists, he’s the most known quantity. It’s not just that he’s been on the bench for 10 years and has written hundreds of opinions. So has Kethledge. It’s that he’s been a big name in conservative legal circles since practically the day he graduated law school. Washington conservatives know him and prefer him. He won’t be a Souter. The worst-case scenario for him, realistically, is that he ends up in sync with John Roberts although I think he’d be considerably to the right of that. Sean Trende sees him positioning himself on the Court as the intellectual leader of the conservative bloc, which is plausible: Having been marked for greatness by official Washington since his 20s, he’s not going to get to the high bench and coast. Trende:
Judge Kavanaugh, however, could fill [the Scalia] role. His conservative credentials are nearly impeccable, and those concerned about his dissent in the Obamacare cases should remember Scalia joining Brennan’s opinion striking down flag-burning statutes. Additionally, he is, quite simply, one of the most brilliant individuals I have ever encountered. He is also a truly gifted writer. At Kirkland, we were instructed to make our briefs “sing”; his first drafts were legendary for already being full operas, and that was before he turned to the task of rewriting them dozens of times. Kavanaugh would arrive to the court well-respected by the other justices, as most of them have hired his clerks (which is unusual in this day and age). I suspect that in two decades, constitutional law nerds would speak of the Kagan-Kavanaugh clashes with the same reverence my generation holds for the Brennan-Scalia battles.
Kethledge is also a known quantity after a decade on the bench and also has little Souter risk. Hugh Hewitt thinks he’d be Gorsuch 2.0, which is highly appealing, but he’s not as familiar to the movement-conservative legal ecosystem as Kavanaugh is. With Kavanaugh there’ll be no surprises; with Kethledge, who knows? As for Barrett, she’s been a judge for less than a year and practically everything written about her this week has had to do with Roe and abortion. She clerked for Scalia and thus a Souter scenario is unlikely in the extreme, but she’s more of a black box legally than the other two finalists. And she’s 46! If Trump wins a second term, he could return to her in five years, after she’s piled up some jurisprudence, and she’d still be a youngish pick for the Court. Kavanaugh, meanwhile, is 53. For him it may be now or never.
Another sign that he’s the favorite:
Maybe that’s just further evidence of Kavanaugh having many friends in official Washington eager to ride to his defense, but it could also be that people in the know are aware that he’s the pick and want to get ahead of shaping opinion about him before Monday. No sense having media figures with an audience like Erickson souring righties on Kavanaugh now when they’ll be married to him within 72 hours.
One line from the CNBC piece quoted above gives me pause: “Trump and Pence believe Kavanaugh is considered the safest choice to reel in undecided senators, given his mixed opinions on a wide range of issues, including President Barack Obama’s Affordable Care Act and Roe v. Wade, the sources said.” That seems … not correct. Kethledge is the most confirmable nominee. If anything, Kavanaugh might — might — be unconfirmable, since he has knocks against him from both sides. As noted yesterday, Ted Cruz reportedly discouraged the White House from picking him, fearing he’d be unreliable on the Court. Ken Cuccinelli, another movement conservative well known in righty legal circles, told WaPo of Kavanaugh, “He looks, walks and quacks like John G. Roberts Jr. The Bush lives loudly in Kavanaugh.” More importantly, Rand Paul has allegedly told colleagues that he won’t vote for Kavanaugh as nominee, which, if true, could doom his candidacy. I think all Republicans will line up for him in the end but he’s not a sure thing on that point like Kethledge.
As for Democrats, there are all sorts of things they might object to — his work for Ken Starr, his service in the Bush White House, various conservative rulings on the bench. And Politico makes a good point about how a Kavanaugh confirmation hearing might play for Trump. Does POTUS really want to see it turn into a referendum on impeachment?
White House advisers are concerned that, as a lead author of the Starr Report, Kavanaugh would provide an opening for Democrats to try to back him into a corner with arguments he wielded against former President Bill Clinton that could at some point apply to Trump…
While the parallels are open to debate, they seem close enough to give Democrats fodder to divert at least a portion of a potential Kavanaugh confirmation hearing to a discussion of Trump’s alleged misdeeds. There could be documents for Democrats to dig into as well. A National Archives listing of Starr’s files shows at least eight boxes of records belonging to Kavanaugh, as well as a smattering of his memos in the files of other lawyers on the team.
It’s one thing for Trump to endure a circus at his own expense knowing that the payoff will be seeing his nominee confirmed, it’s another to endure it fearing that he might get borked in the end. Why gamble on that and have to stomach the grumbling from the Cruzes and Cuccinellis of the grassroots right if Kavanaugh gets through when you could nominate Kethledge and have a relatively — relatively — smooth process? Makes me wonder where Kavanaugh would be in the power rankings if he didn’t have McGahn and other Federalist Society types whispering in the president’s ear on his behalf. He’s the high-risk, high-upside choice whereas Kethledge is the lower-risk, high-but-maybe-not-as-high-upside (but maybe as-high!) choice. How lucky do you feel?