Legal experts parse Kavanaugh's nomination to Supreme Court

'He may have a very strong personality once he's on the court.'

Cherri Gregg
July 10, 2018 - 12:13 pm
Supreme Court nominee judge Brett Kavanaugh speaks as President Donald Trump listens, in the East Room of the White House on July 9, 2018 in Washington, DC.

Oliver Contreras/SIPA USA


PHILADELPHIA (KYW Newsradio) — President Donald Trump's pick for the nation's highest court, Brett Kavanaugh, is already getting strong reaction from political leaders. But who is he? Why did he beat out the rest of the presumed contenders? And what's next? 

Trump's requirements for the high court were clear: He wanted a conservative with a strict view of interpreting the Constitution. Most importantly, as he promised on the campaign trail, he wanted a justice willing to overturn Roe v. Wade. Maryland native Kavanaugh was his pick of the short list, which included Third Circuit Justice Thomas Hardiman, the Sixth Circuit’s Raymond Kethledge, and professor-turned-federal judge Amy Coney Barrett.

"Judge Kavanaugh, out of the four, has the clearest record in his willingness to do that," said Lisa Tucker, an associate professor at Drexel's Kline School of Law, who is an expert on the nation's high court.

Kavanaugh's pedigree mirrors that of many already on the court, but he also possesses strong political connections. He's a Yale and Yale Law graduate, he's a former clerk to Justice Anthony Kennedy, who is retiring, and he worked in the George H. W. Bush administration. 

In addition, Kavanaugh is no stranger to high-profile cases. He helped write the Starr Report, which detailed the investigation of President Bill Clinton. He also worked on George W. Bush's legal team during the Florida recount, which resulted in Bush winning at the Supreme Court level in Bush v. Gore in 2000. Adn after that, he spent 12 years on the D.C. Circuit Court of Appeals.

"This is a very experienced judge with experience in the executive branch and as a judge for many years," said Tucker. "I think we will see a very polished performance from him."

Tucker says Kavanaugh is primed and ready to be "humble" as he courts U.S. senators during the next step in the process. She believes he'll perform at the confirmation hearing and could possibly surprise both sides with his independence after he gets on the bench.

"He may have a very strong personality once he's on the court," she said.

Republicans are still shaken years after Justice David Souter, reported by George H. W. Bush in 1990, turned out to be a fairly liberal voice on the court. It could be a big reason why President Trump relied on the Federalist Society to create the short list to ensure that it was properly vetted.

"But the concerns are several fold," said Seth Kreimer, a professor at Penn Law. "Will he have the independence to uphold the rule of law?"

Kreimer notes there is major concern about whether Kavanaugh is too closely aligned to the Republican Party. He believes there could be issues with regard to whether Kavanaugh will step up to maintain the rule of law if the Trump administration oversteps its power, whether he will roll back rules against discrimination, and whether he will overturn legislation that regulate big business.

"I was pleased with many of the things he said in his speech," Kreimer said, "but we'll see what more he has to say."

In his nomination acceptance speech, Kavanaugh stressed his independence and strict view of the Constitution and adherence to liberty. He also spent a considerable time speaking about his teacher-turned-prosecutor, then judge, mother, his lawyer father, and his wife, Ashley, who was the personal secretary to George H. W. Bush. Even with his establishment ties, Kreimer does not believe the confirmation is guaranteed.

"Many senators will pose fairly challenging questions to him," Kreimer said.

"It's no secret that the Bushes and Trumps are not close," said Bill Rosenberg, a political science professor at Drexel University. "That will make some of the more traditional Republicans more comfortable."

Rosenberg says the speed bumps will likely come from his 300 opinions while on the bench. His involvement with political issues and high-profile cases could also raise questions.

"The question is whether or not senators Lisa Murkowski and Susan Collins will vote against him if they feel he will not defend Roe v. Wade," Rosenberg said, "but Collins and Murkowski have never voted against a nominee put up by a Republican."

Rosenberg said he believes the Democrats will delay the process as much as possible. Some Democrats, including Pa. Sen. Bob Casey, have argued that no nominee should be confirmed before the mid-terms. However, the Republicans have the majority by one vote and, if they stick together, could get Kavanaugh confirmed and on the bench by the October session.