Donald Trump has nominated Brett Kavanaugh, 53, a judge on the U.S. Court of Appeals for the D.C. Circuit, to succeed Anthony Kennedy on the Supreme Court.
Trump made the announcement from the White House East Room shortly after 9 p.m. Eastern. He praised Kavanaugh as someone with "a proven commitment to equal justice under the law," and said that in legal circles, he is considered "a judge's judge." He has served on the D.C. Circuit Appeals Court, which hears many cases on matters related to federal regulations, since 2006.
"I'm grateful and I'm humbled by your confidence in me," Kavanaugh said to Trump. He also lauded Kennedy, saying, "Justice Kennedy devoted his career to securing liberty."
"If confirmed by the Senate, I will keep an open mind on every case," Kavanaugh pledged. He also said, "A judge must be independent and interpret the law, not make the law." He said he would interpret the U.S. Constitution and other laws as written.
Kavanaugh doesn’t appear to have much of a record on LGBT rights. But he “has a track record of siding with religious organizations over governments and other groups that challenge them, a particularly attractive trait to conservatives,” CBS News reports. He also supported exemptions from the Affordable Care Act for a religious group, “albeit not to the full extent possible,” according to the Empirical SCOTUS blog; this was in a case challenging the ACA’s mandate for insurance coverage of contraceptives. He recently dissented from a decision that allowed a minor who is an undocumented immigrant to obtain an abortion, and if he’s the nominee, that is certain to come up in his confirmation hearings.
On other issues, “he has written almost entirely in favor of big businesses, employers in employment disputes, and against defendants in criminal cases,” notes Empirical SCOTUS. On the D.C. Circuit, he has heard several cases involving federal regulatory agencies, and has generally been against the expansion of regulations – a position favorable to business rather than employees or consumers. He has ruled in favor of gun rights, and as a White House aide in the George W. Bush administration, he supported the expansion of presidential power. He’s a former law clerk for Justice Kennedy, and hos 12 years on the D.C. Circuit represent extensive federal court experience. Both of those factors could work in his favor. Something that could work against him, at least with Democrats, is that in the 1990s he assisted then-independent counsel Kenneth Starr in his investigation of President Clinton.
Several LGBT rights groups immediately voiced opposition to Kavanaugh. The Human Rights Campaign called on the Senate to reject him. “In nominating Brett Kavanaugh, Donald Trump has followed through on his threat to nominate a justice who would undermine LGBTQ equality, women’s reproductive rights and affordable healthcare,” said HRC president Chad Griffin in an emailed statement. “Now, the Senate has a responsibility to fulfill its constitutional duty, serve as a check on this reckless president and reject Brett Kavanaugh’s nomination. This nominee was hand-picked by anti-LGBTQ, anti-choice groups in an explicit effort to undermine equality — and the prospect of a Justice Kavanaugh threatens to erode our nation’s civil rights laws, block transgender troops from bravely serving this nation and allow a license to discriminate against LGBTQ people in every aspect of American life. The 2018 midterm elections just became the most consequential elections of our lifetime, and we must seize the opportunity to pull the emergency brake on this regime. We need to vote this November like our lives depend on it — because they do.”
Rachel B. Tiven, chief executive officer of Lambda Legal, also found Kavanaugh unacceptable, issuing the following statement: “Judge Kavanaugh would guarantee 40 more years of Trump’s values on the Supreme Court. Like every other judicial nominee who has a seal of approval from the Heritage Foundation and the Federalist Society, Judge Kavanaugh shares Donald Trump’s same distorted view of the law. We have good reason to fear that Judge Kavanaugh will abuse his power on the Court to protect the wealthy and the powerful while depriving LGBT Americans of our dignity, demeaning our community, and diminishing our status as equal citizens. There is too much at stake to allow Judge Kavanaugh to sit on the Court that, over its history, has decided who can marry, who can vote, and who is equal. President Trump wants a Supreme Court justice who looks like him, acts like him, and only protects people like him. Brett Kavanaugh has argued that sitting presidents should not be subject to civil or criminal charges while in office and that presidents should be able to dismiss any lawyer 'out to get him.' Kavanaugh also thinks that the president does not need to follow the law if he thinks the law is unconstitutional. At this moment in our history, the country not only deserves but needs a judge who will be loyal first and foremost to our Constitution and the rule of law. During his last confirmation hearing, Judge Kavanaugh tried to obfuscate his involvement in the development of the Bush White House’s torture policies. We do not believe that Judge Kavanaugh can be trusted with the incredible responsibility of a seat on the Supreme Court at a time when forces are aligned to undermine marriage equality, access to abortion and the Affordable Care Act. A judge with this kind of record should not occupy a seat on the Supreme Court that has been the critical swing vote on LGBT issues, as well as abortion, healthcare, voting rights, and many other important civil rights questions, for decades to come. ... The President chose Judge Kavanaugh to gut abortion and birth control, to erase coverage for pre-existing conditions, and to undermine marriage equality. This is why Democrats must hold Senate Republicans to the ‘McConnell Standard’ and oppose any hearing or vote on Judge Kavanaugh’s nomination to the Supreme Court until after the 2018 midterm elections. We cannot afford 40 more years of Trump values on this court.”
Shannon Minter, legal director for the National Center for Lesbian Rights, urged the Senate to carefully consider what is at stake for LGBT people and other marginalized communities, "and to ensure that any person who sits on our nation’s highest court understands the realities facing LGBT communities and others for whom our Constitution’s promise of freedom and equality is not yet fully realized. To date, there is nothing in Judge Brett Kavanaugh’s record to indicate that he understands the real-world impact of discrimination on LGBT people or the importance of construing our nation’s laws to enable them to participate fully and equally in society. The Supreme Court must be a court for all, not just for the privileged few. It is sobering that a president who has shown disregard for many of our nation’s most cherished rights and freedoms has an opportunity to appoint a second justice to the Supreme Court. This moment is a wake-up call to LGBT people and others about the critical importance of elections and the need to vote this November.”
GLBTQ Legal Advocates and Defenders executive director Janson Wu issued a statement saying, "We urge Senators to take extremely seriously their duty to ensure a nominee is not pushed through to a seat on our nation’s highest court who does not support or cannot demonstrate through word and deed a clear dedication to upholding our constitutional guarantees of equality for all. We have severe concerns about Judge Kavanaugh’s ability to meet this standard, and reason to fear his nomination is based on predetermined ideology, not a commitment to justice," especially given that Trump has said he would appoint justices who would overturn the Roe v. Wade ruling that established abortion rights nationwide and rule against the ACA.
Sarah Kate Ellis, president and CEO of GLAAD, said, “If confirmed, Brett Kavanaugh will have the chance to codify President Trump and Vice President Pence’s dangerous anti-LGBTQ record and the agenda of anti-LGBTQ groups into law for decades to come. Like Neil Gorsuch before him, Kavanaugh is an ideologically driven pick designed to create an activist Supreme Court that will undermine rights and protections for women, LGBTQ people, immigrants, and all vulnerable people. Americans do not want or need 40 more years of Trump’s values.”
And Transgender Law Center deputy director Isa Noyola called Kavanaugh “divisive, radical conservative whose appointment would pose a devastating threat to the rights and well-being of transgender people nationwide. We need a Supreme Court that will uphold the values of freedom, fairness, and equal protection enshrined in our Constitution, not green-light discrimination against transgender people, communities of color, immigrants, people with disabilities, and others under attack by this administration. The person who fills this seat will likely have a deciding vote on issues like health care, reproductive justice, and transgender people’s freedom to be our authentic selves and participate in public life, so our lives hang in the balance. Transgender Law Center demands that the Senate reject Kavanaugh and we urge our community to call their Senators to oppose the nomination."
Several progressive activists on a conference call after the nomination was announced warned about not only Kavanaugh's implications for LGBT and reproductive rights but his expansionist view of presidential power, at a time when the president is under investigation. "He has a clear record that he believes the president is above the law," said Sherrilyn Ifill, president and director-counsel for the NAACP Legal Defense and Educational Fund. The evidence is in thousands of documents detailing his work with the George W. Bush administration, and these documents must be released and examined, Hill said. Combine that with the fact that the nomination process was outsourced to the right-wing Federalist Society, which prepared a list of nominees for Trump, and "the taint surrounding this nomination could not be more noxious," she said. There should be no Senate vote on Kavanaugh until Special Counsel Robert Mueller's investigation into questions surrounding the Trump presidential campaign and Russian interference in the election is complete, she added.
Fatima Goss Graves, president and CEO of the National Women’s Law Center, agreed the selection process was tainted. She also said Kavanaugh's name was added to the list of nominees after his dissent from the ruling allowing the undocumented minor to access abortion services. "Too much really is at stake for the Senate to allow this nomination to go through," she said.
As to whether the Senate can be persuaded to reject Kavanaugh, several of the activists on the call said they are seeking to mobilize voters nationwide to get in touch with their senators and urge them to stand against the nominee and for reproductive rights, LGBT rights, voting rights, and more. They also noted that some far-right nominees have been blocked previously, such as Robert Bork in 1987 — and after the Senate voted against confirming him (and a subsequent nominee withdrew), the man who was eventually nominated by President Reagan and confirmed to the court was none other than Anthony Kennedy.
A rejection of Kavanaugh doesn't necessarily mean Trump will nominate someone equally bad, added Sarah Warbelow, legal director for the Human Rights Campaign. When nominees are voted down, she said, presidents usually have to come back with "a more reasonable choice."
She further noted the plethora of LGBT rights questions that may come before the Supreme Court in the near future — whether existing civil rights law bans anti-LGBT discrimination, whether people with anti-LGBT religious beliefs have a legal right to discriminate, and whether transgender people have the right to serve in the military. "We don't need to guess where Brett Kavanaugh will stand on these issues," she said.