Less than a day after President Trump nominated federal judge Brett M. Kavanaugh to the Supreme Court, it’s too soon to know what kind of fight Trump has on his hands: what battles about the timing of Senate consideration, the availability of George W. Bush administration documents, Kavanaugh’s role in the Kenneth Starr investigation of President Bill Clinton and more, lie ahead of an uncertain vote on the nominee’s confirmation. But one thing is already clear: If Trump thinks this is going to be “Gorsuch 2.0” — a relatively smooth process that inured to the president’s political benefit on the way to an inevitable confirmation — he is sadly mistaken. There are five reasons the Kavanaugh confirmation battle will diverge from Justice Neil M. Gorsuch’s path to the court.
First, the stakes are so much higher. True, Democrats were angry that Gorsuch was taking a Supreme Court seat that Merrick Garland should have already occupied. But in the end, a Gorsuch-for-Antonin Scalia swap did not significantly alter the balance on the court. Kavanaugh replacing Anthony M. Kennedy will have a very different impact on the court — leading to a very different kind of fight.
Second, Trump picked the only potential high court candidate who assures that the confirmation hearings will be dominated by a discussion of Trump’s vulnerability to criminal proceedings as a sitting president. If the Gorsuch hearings were largely a respite from public discussion of Trump’s potential criminality, the Kavanaugh hearings — thanks to the nominee’s polar efforts to first prosecute a president, and then, expound the view that a president should be exempt from any criminal proceedings while in office — guarantee that Trump’s own legal troubles will be front and center in the Senate Judiciary Committee’s hearings.