DAVID M. SHRIBMAN ON HIGH-COURT CONSEQUENCES
In revealing his Supreme Court choice, Trump reveals much about the age we live in
With one prime-time announcement, President Donald J. Trump has laid bare the contours of the new political era that his election both reflected and produced.
By selecting Judge Brett Kavanaugh to replace Justice Anthony Kennedy on the Supreme Court, Mr. Trump produced an unusually revelatory moment. The country has seen the president as impulsive and instinctive but rarely as deliberative. It has seen the extent of his resentment of the old political order but rarely has seen him struggle with the limits of resentment as a political strategy.
It has witnessed the sort of change that can be reversed—a new Democratic administration can, for example, restore some of the economic regulations that the Trump team has eliminated — but now is witnessing change of a more permanent nature. Judge Kavanaugh is 53 years old. If he serves until the age when Justice Kennedy retired, he will have been on the bench in 2046, the year Barron Trump will turn 40 and the year minorities are likely to surpass whites as the majority of thepopulation.
• Mr. Trump’s determination to remakethe Republican Party.
Judge Kavanaugh’s sterling academic record and long service on the court commonly regarded as the farm team to the Supreme Court automatically made him a strong candidate for promotion to the high court. Still, Mr. Trump hesitated. He examined a halfdozen others and nearly settled on Judge Thomas Hardiman, whom his aides and Capitol Hill power brokers insisted would be easier toconfirm.
Why the reluctance? It wasn’t Senate Majority Leader Mitch McConnell’s concerns about winning a Kavanaugh confirmation. Instead, those close to Mr. Trump repeatedly argued that the president had to ‘’overcome’’ Judge Kavanaugh’s ties to George W. Bush, the last Republican to occupy the White House. In a conventional presidency such experience would be a shimmery credential; Barack Obama had no hesitation in appointing officials who had served Bill Clinton, his Democratic predecessor, and chose Mr. Clinton’s wife for the top position in his Cabinet: secretary of state.
But Judge Kavanaugh’s deep roots in the administration of Mr. Bush, part of the first family of the traditional Republicanism Mr. Trump reviles, was a formidable obstacle that had to be surmounted. Judge Kavanaugh’s role in the contested 2000 election that took Mr. Bush to power, his marriage to the 43rd president’s top administrative assistant, his appointment to the court of appeals by Mr. Bush, his defense of the school-voucher plan of Gov. Jeb Bush of Florida — all of these elements placed the judge firmly inthe Bush orbit, and thus outside the president’s vision of the new GOPhe is sculpting.
• Mr.Trump’s preference for confrontation politics over conciliation politics.
In choosing Judge Kavanaugh, Mr. Trump made it clear that he is not concerned about setting off a bitter fight on Capitol Hill, despite his failure to win the repeal of Obamacare or an overhaul of immigration policies. Of all the candidates for the Supreme Court whom he considered, Judge Kavanaugh ranked high — perhaps second highest — on the list of potential nominees who would infuriate the Democrats and prompt political trench warfare.
That did not deter Mr. Trump, who was more interested in sealing his ties with his base, which has longed for a true conservative
on the bench, than winning an easy confirmation in a Senate his party controls. The last time Judge Kavanaugh came before the Senate, he was the center of a divisive partisan fight, prompted angry charges of deception from high-ranking Democrats and required three years to be confirmed. But now — before the midterm congressional elections, likely to come after the Kavanaugh confirmation vote — the Trump choice underlines the powerlessness of the Democrats. The Democrats will complain, but theRepublicans will confirm. • The “swamp” still hasn’t been drained.
Mr. Trump prefers the ‘’swamp’’ metaphor to describe the American capital, where an entrenched ruling class — leaning left, preferring regulation of business, invested in the status quo — has held sway since the John F. Kennedy years. His determination to ‘’drain the swamp’’ was at the heart of his campaign and the governing theme of his first two years in office.
And yet, with the selection of Judge Kavanaugh, he reached deep into the Washington swamp (and the Yale alumni directory). Despite claims that the judge is from, but not of, the capital, he is clearly a denizen of Washington, where he was reared, where he worked most of his career and where he gained his judicial experience. (George W. Bush, by contrast, was reared in Texas, proclaimed Texas values, had his presidential retreat in Texas and returnedto Texas in retirement.)
The biggest emblems of his residence
in the swamp: Judge Kavanaugh — like Neil Gorsuch, Mr. Trump’s first high-court nominee — is a graduate of Georgetown PreparatorySchool, where the capital’sCatholic elite send their boys.
• The Supreme Court will be more ‘’political’’ than it was a generation ago.
It has been, to be sure, political throughout history; the legendary Mr. Dooley, the creation of the humorist Finley Peter Dunn, captured that notion with the deathless precept “The Soopreme Court follows the illiction re-turns.’’ It did during the Franklin Roosevelt days and it did in the Obama years. But there is no denying that Judge Kavanaugh is a political animal, characteristics he displayed as he assisted the Bush team in the overtime election in 2000 and as a staff member of Kenneth W. Starr’s team examining the conductof President Bill Clinton.
The Supreme Court has had political actors before, including a onetime chief justice, William Howard Taft, who conducted two presidential campaigns and served in the White House from 1909 to 1913. Without a former senator (Hugo Black) or a former governor (Earl Warren), today’s court has only one political animal, Stephen Breyer, who, along with academic experience, was assistant special prosecutor on the Watergate team and special counsel to the Senate Judiciary Committee, where he was a very close advisor to the late Sen. Edward M. Kennedyof Massachusetts.
The significance of a jurist with political skills is difficult to calculate, for, even with new justices from the establishment, the removal of one jurist and the substitution of another has an impact greater than the 11 percent of voting power that a justice accounts for mathematically. That said, while mathematics often is the principal element in the character of the Supreme Court, chemistry matters, too.