Forty-eight hours ago it looked like Kavanaugh was the pick. Wha’ happened?
Depends on whom you ask. Time magazine says the Bush odor around him might simply be too overpowering for Trump in the end:
Kavanaugh had been considered a frontrunner, but his fortunes may be torpedoed by Trump’s grudges. Kavanaugh was a top aide to President George W. Bush, whom Trump loathes. As much as anything, personality drives the current President to action, and Trump has gone out of his way to attack all members of the Bush clan and their aides. When some Twitter users started posting a photograph of Kavanaugh walking with former Bush deputy chief of staff Karl Rove, most of Kavanaugh’s backers saw the writing on the wall given Rove’s criticism of Trump’s conduct as candidate and as President.
Privately, Kavanaugh has found the treatment of his service in the Bush White House troubling, he has told those involved in picking a nominee. But that is unlikely to sway Trump, aides say, and those involved in the process urged Kavanaugh not to dig any deeper with Trump. White House Counsel Don McGahn, a Kavanaugh booster, has largely stopped making the case for his friend, sources say.
I refuse to believe any Republican senator would vote no and humiliate Trump by torpedoing Kavanaugh after a bitter confirmation process, with Republican voters dug in, based on what we know now. Per the NYT, though, Mitch McConnell has reportedly warned Trump that of the four finalists Kethledge and Hardiman would be easier to confirm whereas Kavanaugh and Barrett *might* be unconfirmable. He’s particularly worried about Kavanaugh’s paper trail — not his judicial opinions (Kethledge has plenty of those too) but his work product for various Republican authorities in his days before joining the bench.
Mr. McConnell is concerned about the volume of the documents that Judge Kavanaugh has created in his 12 years on the United States Court of Appeals for the District of Columbia Circuit, as well as in his roles as White House staff secretary under President George W. Bush and assistant to Kenneth W. Starr, the independent counsel who investigated President Bill Clinton.
The number of pages is said to run into the millions, which Mr. McConnell fears could hand Senate Democrats an opportunity to delay the confirmation vote until after the new session of the court begins in October, with the midterm elections looming the next month. And while Judge Kavanaugh’s judicial opinions are publicly known, Mr. McConnell is uneasy about relitigating Bush-era controversies, the officials briefed on his discussions with Mr. Trump said.
You never know what might turn up in millions of pages of documents to force a Collins or Murkowski to walk away, however angry that might make Trump and his fans. And if the confirmation process is destined to be brutal, it’d be better to have it sooner rather than later so that it’s not fresh in voters’ minds before the midterms. As for Barrett, Cocaine Mitch thinks she might be too hardcore pro-life to get Collins’s and Murkowski’s votes, which would leave the fate of her nomination to red-state Democrats. And any Democrat willing to snatch defeat for the party from the jaws of victory by backing Barrett when her nomination is on the verge of being defeated might as well go the whole nine yards and switch parties while they’re at it. The lefty base will never forgive them. Democratic voters back home might not turn out for them this fall.
So then. Kavanaugh’s too much of a headache, Barrett’s too socially conservative (and, at just 46, will remain a top choice for years as vacancies open up), therefore the pick must be Kethledge, right? Time goes so far as to call him the “leading contender” as of last night. Supposedly POTUS has asked about the judge’s stance on religious liberty and been assured that Kethledge is solid on that — apparently true — and he likes the fact that Kethledge, like Gorsuch, is regarded as a talented writer. (He’s allegedly taken to referring to him as “Gorsuch 2.0.”) But Time also claims that “those meeting with Trump say he’s very much focused on picking someone that will energize his base” and that’s not Kethledge. Some border hawks have spent the past week trying to discredit him by making the case that he’s soft on immigration, in fact, a claim that’ll continue albeit with less enthusiasm if he’s the choice. The base-energizer choice is obviously Barrett. And if you believe the NYT, reports of Kethledge’s frontrunner status are overblown: To the contrary, the paper claims that Trump spent yesterday afternoon going “back and forth every few hours between the four options in front of him, with Judge Kethledge getting the least attention.” The least attention? Does that mean Kethledge is … fading?
Meanwhile, what’s Hardiman still doing in the final four? He was a finalist last year before Gorsuch got the call and remains a finalist this time with a recommendation from Trump’s sister, who sits on the Third Circuit with him. Hardiman isn’t a base-energizer pick either and, while he’s a respected judge, he’s not a “star” of the conservative legal world like Gorsuch and Kavanaugh are. He doesn’t have the Harvard-Yale pedigree that Trump allegedly craves in his nominee. (Neither do Kethledge or Barrett, although Kavanaugh does.) But POTUS must like something about him to keep him on the short-shortlist two years running over people like Mike Lee and Amul Thapar. Maybe he’s preparing to throw us a curveball tomorrow night, knowing that Hardiman very likely would have the easiest time getting confirmed. You know a reality-star president would love his big revelation to have a shock twist.
Update: Even for Trump, this process seems topsy turvy. Kethledge has somehow gone from increasingly likely to be the pick to “all but ruled out,” according to the NYT. Instead it’s the dark horse, Hardiman, who’s on the rise:
President Trump is expressing fresh interest in Judge Thomas M. Hardiman, the runner-up for last year’s Supreme Court vacancy, as he pushes his decision on a replacement for Justice Anthony M. Kennedy into the final hours before his self-imposed deadline of Monday night, three people close to the process said…
The only judge among the four whom the president appears to have all but ruled out is Raymond M. Kethledge. People close to the process said the president had found him likable but comparatively dull. And some conservatives, whose support has guided Mr. Trump’s thinking about the courts, have voiced concern about Judge Kethledge on issues like immigration.
Choosing Hardiman would be a major, major gamble by Trump. Because he’s not a star on the appellate bench or known for being the sort of stalwart conservative that Kavanaugh is, he has the highest Souter potential of the final four by far. He wouldn’t have to be nearly as liberal as Souter to become a major liability for Trump either: All he’d need to do is be less than reliably conservative and righties will remind Trump that he could have had Kavanaugh or Barrett instead. The one thing Trump can’t afford to whiff on is Supreme Court appointments. He’d better think carefully.