opinion

Opinion: Trump nominates Kavanaugh, must confront Dems

Shribman writes, "Of all the candidates for the Supreme Court whom he considered, Judge Kavanaugh ranked high — perhaps ...more
Shribman writes, "Of all the candidates for the Supreme Court whom he considered, Judge Kavanaugh ranked high — perhaps second highest — in the list of potential nominees who would infuriate the Democrats and prompt political trench warfare."
Evan Vucci, AP
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With one prime-time announcement, President Donald J. Trump has laid bare the contours of the new political era that his election both reflected and produced.

By selecting Judge Brett Kavanaugh to replace Anthony Kennedy on the Supreme Court, Trump produced an unusually revelatory moment. The country has seen the president as impulsive and instinctive but rarely as deliberative. It has seen the extent of his resentment of the old political order but rarely has seen him struggle with the limits of resentment as a political strategy.

It has witnessed the sort of change that can be reversed — a new Democratic administration can, for example, restore some of the economic regulations that the Trump team has eliminated — but now is witnessing change of a more permanent nature. Judge Kavanaugh is 53 years old. If he serves until the age when Justice Kennedy retired, he will have been on the bench in the year 2046, the year Barron Trump will turn 40 and the year minorities are likely to surpass whites as the majority of the population.

 

Judge Kavanaugh’s sterling academic record and long service on a court commonly regarded as the farm team to the Supreme Court made him an automatic strong candidate for promotion to the High Court. But still, Trump hesitated. He examined a half dozen others and nearly settled on Judge Thomas Hardiman, whom his aides and Capitol Hill power brokers insisted was easier to confirm.

Why the reluctance? It wasn’t Senate majority leader Mitch McConnell’s concerns about winning a Kavanaugh confirmation. Instead, those close to Trump repeatedly argued that the president had to ‘’overcome’’ the judge’s ties to George W. Bush, the last Republican to occupy the White House. In a conventional presidency such experience would be a shimmery credential; Barack Obama had no hesitation in appointing officials who had served Bill Clinton, his Democratic predecessor, and chose Clinton’s wife for the top position in his cabinet, the role of secretary of state.

But Judge Kavanaugh’s deep roots in the administration of Bush, part of the first family of the traditional Republicanism that Trump so reviles, was a formidable obstacle that had to be surmounted. His role in the contested 2000 election that took Bush to power, his marriage to the 43rd president’s top administrative assistant, his appointment to the bench by Bush, his defense of the school-voucher plan of Gov. Jeb Bush of Florida — all these elements placed the judge firmly in the Bush orbit, and thus outside the president’s vision of the new GOP he is sculpting.

In choosing Judge Kavanaugh, Trump made it clear that he is not reluctant to take on a bitter fight on Capitol Hill, despite his failure to win the repeal of the Affordable Care Act or to win an overhaul of immigration policies. Of all the candidates for the Supreme Court whom he considered, Judge Kavanaugh ranked high — perhaps second highest — in the list of potential nominees who would infuriate the Democrats and prompt political trench warfare.

That did not deter Trump, more interested in sealing his ties with his base, which longed for a true conservative on the bench, than winning an easy confirmation in a Senate his party controls. The last time Judge Kavanaugh came before the Senate he was the center of a divisive partisan fight, prompted angry charges of deception from high-ranking Democrats, and required three years to win confirmation. But now — before the midterm congressional elections, likely to come after the Kavanaugh confirmation vote — the Trump choice underlines the powerlessness of the Democrats. The Democrats will complain, but the Republicans will confirm.

—The ‘’Swamp” still hasn’t been drained.

Mr. Trump prefers the ‘’swamp’’ metaphor to describe the American capital, where an entrenched ruling class—leaning left, preferring regulation of business, invested in the status quo—has held sway since the John F. Kennedy years. His determination to ‘’drain the swamp’’ was at the heart of his campaign and the governing theme of his first two years in office.

And yet with the selection of Judge Kavanaugh, he reached deep into the Washington swamp (and, not incidentally, the Yale alumni directory—the nominee has two degrees from New Haven). Despite claims that the judge is from, but not of, the capital, he is clearly a denizen of Washington, where he was reared, where he worked most of his career, and where he gained his judicial experience. (George W. Bush, by contrast, was reared in Texas, proclaimed Texas values, had his presidential retreat in Texas, and returned to Texas in retirement.)

The biggest emblems of his residence in the swamp: Judge Kavanaugh—like Neil Gorsuch, Mr. Trump’s first high-court nominee— is a graduate of Georgetown Preparatory School, where the capital’s Catholic elite send their boys.

—The Supreme Court will be more ‘’political’’ than it was a generation ago.

It has been, to be sure, political throughout history; the legendary Mr. Dooley, the creation of the humorist Finley Peter Dunn, captured that notion with the deathless precept ‘’The. Soopreme Court follows the illiction re- turns.’’ It did during the Franklin Roosevelt days and it did in the Obama years. But there is no denying that Judge Kavanaugh is a political animal, characteristics he displayed as he assisted the Bush team in the overtime election in 2000 and as a staff member of Kenneth W. Starr’s team examining the conduct of President Bill Clinton.

The Court has had political actors before, including a onetime chief justice, William Howard Taft, who conducted two presidential campaigns and served in the White House from 1909 to 1913. Today’s court has only one genuine political animal, Stephen Breyer, who along with academic experience was assistant special prosecutor on the Watergate team and was special counsel to the Senate Judiciary Committee, where he was a very close advisor to the late Sen. Edward M. Kennedy of Massachusetts.

The significance of the presence of a jurist with deep political skills is difficult to calculate, for even with traditional new justices the removal of one jurist from the court and the substitution of another has an impact greater than the 11 percent that the new justice accounts for mathematically. But although mathematics often is the principal element in the character of the court, chemistry matters, too.

David Shribman is executive editor of the Pittsburgh Post-Gazette.

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