Earlier today, I noted that Brett Kavanaugh wasn’t on President Trump’s original list designed to illustrate the kinds of jurists he thought should be on the Supreme Court. I then said Kavanaugh was on a second list, presented before the general election.
I was mistaken. Kavanaugh wasn’t added until November of 2017. I have corrected this mistake in my live-blogging post.
Why wasn’t Kavanaugh on the original lists? Because he had signed a letter in support of Merrick Garland’s Supreme Court nomination. The people who put the original list together — Don McGahn and Leonard Leo — were concerned that conservatives would be concerned about Kavanaugh’s endorsement of Judge Garland.
Why was Kavanaugh later added to the list? Because he should have been on the list all along and there was no longer any political cost to having him on it.
I have also heard it said that Kavanaugh was added to make Justice Kennedy, for whom he clerked, more comfortable with the idea of retiring. That’s also possible. However, given Kavanaugh’s nomination after Kennedy retired, I tend to discount this theory. Kavanaugh clearly wasn’t added for window-dressing.
Sen. Cory Booker suggested that Trump added Kavanaugh to the list because Trump was in legal jeopardy and wanted a Justice who would have his back. This is pure speculation.
Kavanaugh has long been considered a prime candidate for nomination to the Supreme Court by a Republican president. His exclusion from the original list surprised the D.C. legal community. His inclusion after the election is best viewed, as I stated above, as remedying an omission that was due to political considerations.
NOTE: The original version of this post erroneously stated that Kavanaugh was added to the list in November 2016, rather than November 2017. Based on my error, I argued that Kavanaugh couldn’t have been added to help Trump with his legal difficulties because those difficulties hadn’t arisen.
This argument has no validity given the fact that Trump was in legal jeopardy by November 2017. I regret the error.