Donald Trump’s second Supreme Court selection, due out Monday, has fast become an essentially two-person race. But one candidate, Brett Kavanaugh, is the choice President Trump will make if he wants to double down on his core political issue—immigration—ahead of the midterms, according to court watchers and conservative activists.
In downright Trumpian, Bannonite parlance, the current D.C. District Court of Appeals justice and Washington insider once wrote: “Mere economic expediency does not authorize an employer to displace American workers for foreign workers.”
The other major candidate and reported favorite, Amy Coney Barrett, is facing some questions over her political loyalty, or lack thereof, to Trump during his presidential campaign, an insurrectionary moment in the history of the conservative movement.
Barrett is a federal appeals judge appointed last year by the president, who has gained popularity among many on the Right for Sen. Dianne Feinstein and the New York Times’ risible, veiled attacks on her Catholic faith, as well as the political conventional wisdom that if this is indeed the judicial appointment that finally delivers the deathblow to Roe v. Wade, it had best be a woman. Additionally in Barrett’s favor is that she hails from outside the Ivy League, which would make her unique on this Court.
When Anthony Kennedy announced his retirement last week, Barrett was bandied about as a major contender, but has since risen to top pick according to sources.
But she faces a strong contender in Kavanaugh, also a committed conservative, and a Catholic (but less known for his faith), who has notched ten years on the D.C. circuit court, the second highest court in the land, and essentially the Supreme Court’s AAA team (Chief Justice Roberts and Clarence Thomas served brief tenures there before rocketing forward).
Kavanaugh is also a D.C. insider, an alumnus of nearby Georgetown Prep (then Yale) and George W. Bush’s former staff secretary. His wife also worked for the 43rd president. A 2004 Washingtonian article details their nuptials in “weddings of the rich and famous”; at the height of the Iraq War and Bush’s disquieting re-election bid, the ceremony was attended by then-First Lady Laura Bush.
The Washington Post reported Tuesday night that Kavanaugh has some doubters among social conservatives over a recent abortion case, while others assure his bonafides. Writers Robert Costa and Josh Dawsey reported that some in the White House are all but picking sides. But they added that the Kavanaughs’ service to Bush has not disqualified him in the eyes of Trump, the great usurper of that family’s hold on Republican politics.
Meanwhile, it should be noted that other candidates remain in the mix. Among others, Amul Thapar of Kentucky would be the first south-Asian justice—he is being talked up by allies of Majority Leader Mitch McConnell. Thomas Hardiman, who was runner-up to Neil Gorsuch last time, is still in the running. Utah Sen. Mike Lee is a distant possibility; Raymond Kethledge, too, but if there is a third most likely choice, it is his him. Rounding out the list is Britt Grant, 40, who would provide the president the clearest pathway to fulfill his stated preference to have a justice serve to 40 to 45 years on the bench.
It’s possible the choice will be a complete wild card, like Grant. We know from recent history that a publicly bandied-about list of finalists can be hastily scrapped. Not the best precedent for Grant, but Rex Tillerson was suddenly hired after Trump labored over the candidacies of Mitt Romney, David Petraeus, Bob Corker and Rudolph Giuliani for weeks, before passing on all four.
But a White House source told me that Trump strongly favors Kavanaugh. A former senior administration official and a prominent conservative activist tell me likewise. And they’re not alone: a coalition similar to the one that vaulted Trump to the presidency has assembled on the Kavanaugh’s behalf—populist, plus blue-chip establishmentarians.
At the core of Kavanaugh’s appeal for this contingent are his views on immigration and his fealty—or, at least, lack of recorded skepticism—to the president. He has been endorsed by immigration hardliner Ann Coulter as the clear “best justice” available. That endorsement has been balanced by the support of prominent commentator Hugh Hewitt, who hews closer to the establishment. “Don’t make the easy ones hard, Mr. President. Pick a staunch originalist from the heartland that elected you,” Hewitt writes.
A memo circulating around among activists and conservative lawyers breaks down Kavanaugh’s jurisprudence: “The evidence demonstrates quite strongly that on the question of immigration, Judge Brett Kavanaugh is the candidate who will best reflect the proper understanding of the law as well as the priorities of the Trump Administration.”
Attempting to distinguish him from the other 24 candidates on Trump’s announced list, the memo points out situations in which Kavanaugh has been a dissenting voice against judges ostensibly supported by the conservative Federalist Society.
The coup de grace for this group is his dissent in Fogo de Chao v. Dept. of Homeland Security (D.C. Circuit 2014).
The popular Brazilian steakhouse chain was, in effect, “granting waiters high skilled visas,” the memo argues. “While the D.C. Circuit absurdly reversed the Department of Homeland Security and granted them visas,” the memo highlights Kavanaugh’s dissent, which argued: “At bottom, that seems to be at least part of what is going on in this case—namely, Fogo’s desire to cut labor costs masquerading as specialized knowledge. But under the provision of the immigration laws at issue here, mere economic expediency does not authorize an employer to displace American workers for foreign workers.”
And the memo goes on to dissect other contenders, in particular castigating Hardiman, favored by some in Trump’s orbit, such as former White House Communications Director Anthony Scaramucci. The memo points out Hardiman “began his legal career” by doing some pro-bono work for undocumented immigrants; Scaramucci has distanced himself from some of the harder-line elements of the president’s agenda, including trade protections and family separations at the border.
Others are questioning Barrett for a statement she made during the presidential campaign. Before he appointed her to the 7th Circuit, Barrett publicly called Donald Trump “a mixed bag” on potential judicial picks. And immigration hardliners note she has no record, either way, on their core concern.
But Barrett has vociferous defenders, too, with battle lines being drawn across much of the conservative media.
Fox News’ coverage Tuesday night beat the drum hard in her defense, treating her nomination as a near foregone conclusion. “I think she’s going to get it,” says a prominent conservative activist, who nonetheless favors Kavanaugh. One thought process is that Barrett’s Catholic faith—and seven children—will galvanize the Right.
“Her large family and evident religious practice, and even the fact that she is a professionally accomplished woman, will enrage the Left beyond anything we saw in (Michael) Gorsuch’s confirmation,” writes Washington Examiner’s David Freddoso, agreeing with National Review’s Michael Brendan Dougherty. “And that’s the whole point. It will rouse Trump’s most reluctant supporters, especially in the states with Senate elections this year.”
And for a media-conscious president, The Daily Caller’s Benny Johnson offers a brazen shot across the bow, quoting a senior administration official complaining about Kavanaugh: “This is the low-energy Jeb pick.”
But Kavanaugh has perhaps more formidable media defenders. J.D. Vance, the popular writer on Appalachia who commands cross-partisan appeal, boosts Kavanaugh in The Wall Street Journal. In favor of Kavanaugh, Sarah E. Pitlyk rebuts in Dougherty in National Review: “The stakes in filling the Supreme Court vacancy are high. This is no time for a gamble.”
For any White House nominee, positive National Review and WSJ headlines are good to have in one’s pocket.
As I demonstrated, in his (eventually successful) campaign to be national security advisor, John Bolton selectively placed articles in those two publications when he was boxed out from face time with the president. And some activists doubt that Barrett’s biography would be the number one reason Republicans show up November. An immigration issue weaponized against the Left is far more attractive for this contingent, and Kavanaugh’s nomination could be all about that.
“They’re running on ‘abolish ICE,’” a prominent conservative organizer tells me. “It’s insane.” A veteran Republican operative told me of Sen. Tammy Duckworth’s refusal on CNN Sunday to join the “abolish ICE” chorus: “Someone must have poll tested this.” Many of Kavanaugh’s advocates are daring red state democrats—Claire McCaskill of Missouri, Joe Donnelly of Indiana, and especially, Joe Manchin of West Virgini —to own the issue.
It’s the fight many on the Right want to have, and Kavanaugh is their man.
Curt Mills is the foreign affairs reporter at The National Interest, where he covers the State Department, National Security Council, and the Trump presidency.