Kavanaugh, Kethledge, or someone else?

The word among those who think they know about these things is that President Trump will nominate either Judge Brett Kavanaugh or Judge Raymond Kethledge to the Supreme Court. It’s possible that Trump will nominate someone else, perhaps judge Amy Coney Barrett, but the “smart money” is on Kavanaugh or Kethledge.

I think both are good candidates. I like the fact that they have long service as federal appellate court judges. This means we know what we’re getting, as we did with Justice Alito and Justice Gorsuch.

Of course, long service as an appellate judge means that there likely will be opinions to shoot at, and not just from the left. Indeed, some conservatives have found things they don’t like in the writings of Kavanaugh and Kethledge.

With Kavanaugh, there’s his decision in an Obamacare case and two dissents by conservative judges in important cases that he didn’t join. Ed Whelan defended Kavanaugh on these matters here.

With Kethledge, some conservatives think some of his opinions on immigration aren’t hard line enough. At Breitbart, Ian Mason presents this criticism. At Bench Memos, Roger Meyers, a former clerk for Kettledge, defends the judge.

I haven’t read the opinions in question, so I don’t know who has the better of the argument, Kethledge’s critics or his defenders. However, I do know that the government’s positions in cases involving illegal immigrants aren’t always correct. Even a staunch conservative judge, if he hears enough cases, is likely to rule against the government on occasion. According to Meyers, Kethledge has heard more than 120 immigration cases.

President Trump’s team has pored over the opinions of both Kavanugh and Kethledge. The fact that they are at the top of Trump’s list shows, I think, that their body of work passes conservative muster.

Thus, the decision between the two (and any others still in contention) is likely to come down to matters other than their judicial opinions. What characteristics might come into play?

One might be academic background. Kavanaugh has a law degree from Yale. Kethledge’s is from the University of Michigan. Reportedly, Trump prefers that his Supreme Court nominees have a Yale or Harvard degree. That seems silly and perhaps incongruous, coming from a “populist.” But Gorsuch had a Harvard law degree, so maybe there’s something to the reports of Trump’s snobbism in this matter.

Speaking of Gorsuch, though, Kethledge is viewed by some as “Gorsuch 2.0.” According to the New York Times, this view is based on the fact that Kethledge closely resembles Gorsuch in background, philosophy, hobbies — both are outdoorsmen who like fishing — and even physical appearance.

Trump frequently refers to the Gorsuch nomination as one of the best achievements of his time in office. Thus, it’s plausible to believe that Trump does, in fact, want to nominate “Gorsuch 2.0.”

Gorsuch was an “outsider.” He came from Colorado and carved out his career there. Kethledge is also an outsider, a Michigander. Kavanaugh is a Washington insider. He worked on Ken Starr’s team in the Clinton investigation, worked for President George W. Bush as White House Staff Secretary, and then joined the U.S. Court of Appeals for the District of Columbia.

Kavanaugh’s association with Bush isn’t likely to be viewed by Trump as a plus. However, because he is so well known in Washington, Kavanaugh has strong support from influential advisers to Trump, most notably Don McGahn, the White House counsel, who reportedly is playing a key role in the decisionmaking process.

But just as he has more influential friends in Washington than Kethledge does, so too does Kavanaugh have more enemies. Kavanaugh’s role in the Starr investigation (and David Brock’s claim that Starr referred to Hillary Clinton as a “bitch) won’t endear him to the Democrats.

On the Republican side, Ted Cruz is said to have reservations about Kavanaugh. Rand Paul supposedly has stated he won’t vote for him because of the Obamacare decision. If Paul did say this, and if he’s serious, that’s an obvious problem, if not a deal breaker.

It’s impossible to know whether, and to what extent, these factors carry real weight with Trump. And it’s impossible to know what Trump feels in his gut after interviewing the two men. Very possibly, this is what the selection will come down to.

It has been reported that both interviews went very well. Had they not, they wouldn’t be at the top of Trump’s list.

I would be fine with either candidate (as well as most of the others who reportedly have received strong consideration).

Responses

Books to read from Power Line