According to CBS News, President Trump has narrowed his potential Supreme Court Justice picks to two federal judges: D.C. Circuit Court Judge Brett Kavanaugh and Chicago Circuit Court Judge Amy Coney Barrett. Sources say that Trump will reveal his official nominee in just one week, ahead of Anthony Kennedy’s retirement, which begins on July 31. CBS reports:
CBS News has learned that D.C. Circuit Court Judge Brett Kavanaugh and Chicago Circuit Court Judge Amy Coney Barrett are currently Mr. Trump’s leading contenders for the appointment to the nation’s highest court.
So what do we know about the two favorites? Daily Wire Editor-in-Chief Ben Shapiro provided a run-down of the top five leading candidates last week, which included both federal judges. Below are Shapiro’s summaries of the pros and cons of both candidates, along with some comments from a few other political analysts.
Here are the conservative pros to Kavanaugh as described by Shapiro:
Kavanaugh is a former clerk for Justice Kennedy. He was elevated to the federal bench in 2006, after a three-year delay. His nomination was delayed thanks to Democratic upset over the fact that Kavanaugh worked for Kenneth Starr in the office of the Solicitor General, and had the temerity to say that the Clinton administration targeted Starr. Kavanaugh has been on the court for quite a while, and has a long record — he’s authored nearly 300 decisions. He recently dissented when the circuit decided that a 17-year-old illegal immigrant detainee had a right to an abortion (he explained that the decision was “based on a constitutional principle as novel as it is wrong”), and held in 2011 that the Washington, D.C. ban on semi-automatic rifles and its gun registration requirement were unconstitutional under Heller. He also held that the Consumer Financial Protection Bureau structure was unconstitutional. Kavanaugh has been a strong critic of Chevron deference to administrative agencies (although his Chevron strategy has been less straightforward, according to some, than that of Justice Gorsuch). Kavanaugh has stated that his judicial philosophy is textualist, although some commentators suggest that his textualism is not as strong as Gorsuch’s. Kavanaugh, like Chief Justice Roberts, is known for working across the aisle.
And here are Shapiro’s cons for Kavanaugh:
On the other side of the ledger, critics suggest (correctly in my view) that Kavanaugh upheld Obamacare in Sissel v. Department of Health and Human Services as well as in Seven-Sky v. Holder, in which he stated that the Obamacare penalties were actually “taxes.” Critics have also pointed to his opinion in a case regarding whether the government could compel priests to cover birth control under Obamacare; in that dissent, he held that there was a compelling government interest in providing birth control, but that the government could find less restrictive means of doing so.
National Review’s Shannen Coffin pushed back on Shapiro’s warnings about some potential red flags for Kavanaugh, describing the frontrunner as having “an impressive record of fidelity to the Constitution”:
Suffice it to say that more than a decade on the D.C. Circuit, often somewhat facetiously called the “second highest court in the land,” has yielded sufficient evidence that Brett Kavanaugh deserves his place on any Supreme Court short list. He has an impressive record of fidelity to the Constitution, with particularly impressive opinions in the realm of separation of powers (his opinion invalidating the vesting of unchecked power in a single director of the Consumer Financial Protection Bureau is a tour de force), the Second Amendment, and religious liberties.
Here’s Shapiro’s all-positive summary of key facts to know about Barrett:
Barrett’s nomination to the 7th Circuit became a cause celebre when Democrats began suggesting that her Catholicism was a bar to her ability to be an objective judge. She believes that life begins at conception, and signed a letter from the Becket Fund criticizing Obamacare’s requirement that employers provide contraceptive coverage, calling it a “grave violation of religious freedom.” Barrett has written in great depth on Justice Scalia’s originalism; she’s evidenced support for textualism as well. She clerked for Scalia.
Ahead of her affirmation hearing in 2017, in which Democrat Dianne Feinstein infamously said “the dogma lives loudly” within Barrett, National Review provided some information about Barrett’s experience, including the following “notable matters”:
- At Notre Dame, Barrett taught and researched in the areas of federal courts, constitutional law, and statutory interpretation. Her scholarship in these fields has been published in leading journals, including the Columbia Law Review, Virginia Law Review, and Texas Law Review. Her recent publications include Congressional Insiders and Outsiders, U. Chi. L. Rev. (forthcoming 2017), Originalism and Stare Decisis, 92 Notre Dame Law Review (forthcoming 2017) and Congressional Originalism, 19 U. Penn J. of Const. Law (2017).
- From 2010-2016, she served by appointment of the Chief Justice on the Advisory Committee for the Federal Rules of Appellate Procedure.
In a recent op-ed for the Chicago Tribune, Ramesh Ponnuru lists some reasons that Barrett would be the best choice for Kennedy’s replacement, including that she is a woman, just 46 years old, brings some theoretical diversity to the court, and has already withstood the Democrats’ fire:
Her educational history — she went to Rhodes College and Notre Dame Law School — would add a little welcome diversity to a Supreme Court full of Yale and Harvard alumni. It’s not the most important consideration, but a little less insularity would be a good thing.
Barrett has also recently been through Senate confirmation to a federal appeals court. She won the support of all the Republicans and three Democrats (Joe Donnelly of Indiana, Tim Kaine of Virginia and Joe Manchin of West Virginia). Some of those senators might rationalize a vote against her for the Supreme Court on the ground that her decisions on the appeals court have disappointed them, or that the high court has more power than the one they voted to put her on. But they will be hard-pressed to argue that she is an extremist given their own recent support.