President Trump is expected to move quickly to nominate a replacement for retiring Justice Anthony M. Kennedy’s soon-to-be-vacant Supreme Court seat, and two leading candidates are veteran Washington, D.C., appellate Judge Brett Kavanaugh and Judge Amy Coney Barrett, a former Notre Dame law professor and recent Trump appointee to the 7th Circuit in Chicago.
They emerged from a list of more than two dozen potential nominees put together by the conservative Federalist Society and Heritage Foundation.
The list was Trump’s idea and it has proven effective, said Leonard Leo, a Federalist Society official who is advising the White House. It told Republican voters that he was serious about appointing only reliable conservatives to the high court, he said.
Unlike in decades past, when presidents and their top lawyers scrambled to find a qualified nominee when a vacancy suddenly arose, the Federalist Society list is the result of careful screening. A team of lawyers read and analyzed everything written or said by the candidates.
Their unofficial motto is “No more Souters,” a reference to now-retired Justice David H. Souter, who was nominated by President George H.W. Bush in 1990. Souter was a little-known judge from New Hampshire, but the White House team assured Republicans he was a conservative.
They were wrong. Souter was careful and cautious as a judge and devoted to precedent. But his leanings were moderate to liberal. In 1992, Souter along with Justices Anthony M. Kennedy and Sandra Day O’Connor joined to uphold the right to abortion announced two decades earlier in Roe vs. Wade.
Conservatives are determined never to make the same mistake again.
Kavanaugh, 53, grew up in Washington and is the favorite of many conservative lawyers here. He went to Yale Law School and clerked at the Supreme Court for Kennedy alongside Neil M. Gorsuch, who joined the court last year as Trump’s first appointment. Kavanaugh was a top deputy to independent counsel Kenneth Starr in the long investigation of President Clinton, and he drafted the Starr Report that led to Clinton’s impeachment. He also joined the legal team that represented George W. Bush in the fight over the recount in the 2000 presidential election.
Kavanaugh worked in the White House counsel’s office for Bush and later served as his staff secretary.
In 2003, Bush nominated him to the U.S. Court of Appeals for the District of Columbia, but Democrats initially blocked his confirmation. Sen. Charles E. Schumer (D-N.Y.) called him a “very bright legal foot soldier” who has been in the middle of every partisan legal battle. But Kavanaugh finally won confirmation in 2006.
Since then, Kavanaugh has written hundreds of opinions, and he is known for always staking out a conservative position.
“He is much more conservative in his approach to law than Justice Kennedy,” said Justin Walker, a University of Louisville law professor who clerked for Kavanaugh at the appeals court and Kennedy at the Supreme Court. “There is no guesswork with Judge Kavanaugh. He is extremely predictable.”
Walker cited, as an example, Kavanaugh’s support for the right to own a semiautomatic rifle under the 2nd Amendment. In 2008, the Supreme Court struck down a District of Columbia ordinance that prohibited residents from having a handgun at home. The same plaintiff later claimed the right to possess a semiautomatic weapon, but lost by a 2-1 vote in the D.C. Circuit, Walker noted. Kavanaugh wrote a lengthy dissent arguing that the 2nd Amendment included the right to have such a weapon.
The Supreme Court, however, has rejected appeals raising that issue, which has the effect of upholding laws and ordinances that banned such assault weapons.
Last fall, Kavanaugh was involved in a quick-moving dispute over whether a migrant teenager in Texas could be released from immigration custody to obtain an abortion. A federal judge cleared the way, but Kavanaugh wrote a 2-1 decision siding with Trump administration lawyers and blocking the abortion for up to 10 more days. The full appeals court intervened and overturned his ruling. In dissent, he faulted his more liberal colleagues as wrongly creating a “new right for unlawful immigrant minors in U.S. government detention to obtain abortion on demand.”
Like many judges, he has avoided any direct comments in his legal opinions about Roe vs. Wade, the landmark abortion ruling that will loom large over upcoming confirmation hearings.
In contrast to Kavanaugh, Barrett, 46, is a newcomer with a sparse record as a judge. She is a product of the University of Notre Dame and South Bend, Ind. She went law school at Notre Dame and spent a few years in Washington as a law clerk for D.C. Circuit Judge Laurence Silberman and Justice Antonin Scalia. She returned in 2002 to teach law at Notre Dame.
Barrett was narrowly confirmed by the Senate in November, and now commutes a few days a week from South Bend to downtown Chicago.
She has, however, written and spoken frequently about the importance of her Catholic faith and in her belief that life begins at conception. In a 2003 scholarly article, she suggested Roe vs. Wade was an “erroneous decision.”
During her Senate hearing, Sen. Dianne Feinstein (D-Calif.) said she had read Barrett’s writings, adding that the “dogma lives loudly within you, and that’s a concern.”
That comment triggered a sharp backlash from Barrett’s defenders and others, who said the nominee was being criticized for her faith.
But if Barrett is the nominee, Democrats and liberal activists are certain to focus on her views about abortion and the role they might play if the court is asked to overturn Roe.