Trump’s supreme court pick may have saved his presidency
US president’s second nominee to the court could buffer him from impeachment
Trump had summoned senior Republicans to the White House to witness one of the most important moments of his presidency – the nomination of a supreme court justice.
With his characteristic eye for showbiz, Mr Trump had built up suspense around the selection process, finally choosing to unveil his nomination on prime-time television. But behind the razzmatazz of the event, a very serious matter was at stake. Nominating a supreme court judge, he told his waiting audience before finally revealing his choice, is “one of the most profound responsibilities of the president of the United States”.
“I’ve often heard that, other than matters of war and peace, this is the most important decision a president will make,” he said solemnly.
He is correct. The right to nominate a judge to the nine-member court is one of the major powers invested in the US president and is a move that can have profound implications for the country long after a president leaves office. While many presidents never get the opportunity, Trump has been given the power to nominate not one but two supreme court justices: after taking office, he nominated Neil Gorsuch to succeed Antonin Scalia; and Justice Anthony Kennedy’s resignation two weeks ago gave him the opportunity to nominate a second justice.
For Republicans, the development is a welcome payoff for the support they have given – often reluctantly – to Trump. The promise of a more conservative-leaning court system was the reason many Republicans voted for Trump in 2016. During the Republican primaries, when many establishment Republicans were wary of the brash New York businessman who once had ties with the Democrats, it was his promise to nominate conservative justices – and specifically anti-abortion judges – that secured their support.
Trump’s decision to publish a list of conservative judges during the campaign from which he would choose nominees was a clever tactic, a written guarantee that he would follow a conservative agenda.
Quietly packing the lower courts
Over the last 18 months, he has kept his promise. While the Trump administration has been slow to appoint staff across the government system, it has been quietly packing the lower courts with conservative judges, in consultation with conservative organisations such as the Heritage Foundation and the Federalist Society.
At the supreme court level, Trump has followed through for his voters, nominating Gorsuch within days of inauguration. Faced with an unexpected second nominee, he finally settled on Monday on Brett Kavanaugh, choosing to sideline more vocal social conservatives such as Amy Coney Barrett, amid fears that she could face tough confirmation hearings from pro-choice Republicans in the Senate.
Kavanaugh is seen as a safer choice. A federal appeals court judge in Washington DC, in some 300 opinions he has shown a solid conservative position, though he is better known for his views on issues such as separation of powers, and the curtailment of the administrative state, rather that contentious issues such as abortion.
His nomination could face other challenges, however. As well as his Ivy League academic background and unquestionable legal abilities, he has direct experience in Republican politics. He is closely aligned with George W Bush – his wife worked as Bush’s personal secretary – and he worked for the Bush administration as well as on Bush’s legal team in the Bush-Gore presidential run-off in 2000 in Florida.
If any lesson is to be drawn from the forthcoming debate over Trump's nominee it is that elections matter
The 53-year-old has also been involved in an issue that could dominate the second half of Trump’s presidency: impeachment. Kavanaugh was part of special counsel Kenneth Starr’s legal team during the Bill Clinton-Monica Lewinsky scandal. More intriguingly, he later set out his opposition to the notion of impeaching a sitting president.
“Whether the constitution allows indictment of a sitting president is debatable,” he wrote in 1998. The following year he mused on the topic further. His experience working with a president had shown him that the job of a president is “far more difficult than any other civilian position in government”. Consequently, a president should not be distracted by civil suits or criminal proceedings while in office, he said.
Given the ongoing investigation by special counsel Robert Mueller, these comments are likely to be seized upon by Democrats during his confirmation hearings, which are expected to take place in September.
Nonetheless, the path to the supreme court for Trump’s nominee looks relatively straightforward.
Though Republicans have only a majority of one – and John McCain remains in Arizona due to illness – some Democrats could vote in favour of Kavanaugh.
In the meantime, Democrats can only sit back and do their best to hold Trump’s nominee to account, in the understanding that his appointment will probably cement the conservative majority of the court for many years to come. While Kennedy’s retirement was outside the control of Democrats, many still blame Senate Democrats for not putting up a better fight when Mitch McConnell refused to consider Barack Obama’s nominee to replace Scalia, who died in 2016.
Perhaps it was a sign of complacency – like most of the country, politicians on both sides of the aisle were sure that Hillary Clinton would win the White House. Things, of course, turned out very differently.
But if any lesson is to be drawn from the forthcoming debate over the Supreme Court nominee it is that elections matter. If Clinton had won, the political hue of the supreme court in the coming decades would be much different. As America prepares for the midterm elections, it’s a sobering thought.