At 53 years old, Brett Kavanaugh would have a major impact on the U.S. Supreme Court, likely for decades to come. But in the immediate future, some commentators in Washington say President Trump’s decision to nominate this federal appeals court judge was not just based on his conservative credentials.
Kavanaugh has articulated the view that a sitting president should be shielded from civil or criminal investigations. Back in the 1990s, Kavanaugh was an assistant to independent counsel Kenneth Starr as he investigated President Bill Clinton. In 1998, he helped draft a report recommending Clinton’s impeachment. But in 2009 Kavanaugh wrote an article for the Minnesota Law Review, arguing that sitting presidents shouldn’t be distracted from their responsibilities. He wrote:
“Like many Americans at that time, I believed that the President should be required to shoulder the same obligations that we all carry. But in retrospect, that seems a mistake. Looking back to the late 1990s, for example, the nation certainly would have been better off if President Clinton could have focused on Osama bin Laden without being distracted by the Paula Jones sexual harassment case and its criminal investigation offshoots.”
The U.S. Supreme Court could be the ultimate arbiter over whether President Trump can be forced into an interview via a subpoena with Special Counsel Robert Mueller, who is investigating allegations of collusion with Russia during the 2016 election and other matters. The high court could also decide whether the president has the right to fire Mueller, or whether a sitting president can be charged with a crime.
Kavanaugh’s nomination has to be confirmed through a process in the U.S. Senate. But the Senate Minority Leader, Democrat Charles Schumer, has promised to fight it fiercely because Kavanaugh could swing the court toward conservative positions on issues like abortion. Kavanaugh has not vowed to overturn the 1973 Roe v. Wade Supreme Court decision establishing a constitutional right to abortion access. However, his judicial record indicates that he might side with states seeking to limit women’s access to abortions. Democrats also say he would likely support those trying to erode President Barack Obama’s signature health care legislation, the Affordable Care Act. In particular, they predict Kavanaugh would side with those wanting to end the obligation for health insurance companies to accept patients with pre-existing conditions.
Republicans currently hold a 51-49 majority in the Senate. Assuming the nomination is approved by the Senate Judiciary Committee, a full vote in the Senate would require a 51-vote majority to pass, and that means every vote is critical. Republican Senator John McCain, battling brain cancer, may not be healthy enough to travel to Washington for a deciding vote. At least two Republican senators have a record of voting with Democrats on liberal issues like abortion and health care. And there are several Democrats up for re-election in November from traditionally conservatives states who may back Republicans and support the nomination. The fight for this nomination is now being framed as one of the key battles of the Trump presidency. The outcome is likely to have significant near and long-term implications for the debates that divide America, now and into the distant future.