Less than a day after President Donald Trump nominated federal judge Brett Kavanaugh to the Supreme Court, it’s too soon to know what kind of fight Trump has on his hands: what battles about the timing of Senate consideration, the availability of George W. Bush administration documents, Kavanaugh’s role in the Kenneth Starr investigation of President Bill Clinton and more, lie ahead of an uncertain vote on the nominee’s confirmation. But one thing is already clear: If Trump thinks this is going to be “Gorsuch 2.0” — a relatively smooth process that inured to the president’s political benefit on the way to an inevitable confirmation — he is sadly mistaken. There are five reasons the Kavanaugh confirmation battle will diverge from Justice Neil Gorsuch’s path to the court.
First, the stakes are so much higher. True, Democrats were angry that Gorsuch was taking a Supreme Court seat that Merrick Garland should have already occupied. But in the end, a Gorsuch-for-Antonin Scalia swap did not significantly alter the balance on the court. Kavanaugh replacing Justice Anthony Kennedy will have a very different impact on the court — leading to a very different kind of fight.
Second, Trump picked the only potential high court candidate who assures that the confirmation hearings will be dominated by a discussion of Trump’s vulnerability to criminal proceedings as a sitting president. If the Gorsuch hearings were largely a respite from public discussion of Trump’s potential criminality, the Kavanaugh hearings — thanks to the nominee’s polar efforts to first prosecute a president, and then, expound the view that a president should be exempt from any criminal proceedings while in office — guarantee that Trump’s own legal troubles will be front and center in the Senate Judiciary Committee’s hearings.
Third, Trump picked the only finalist with judicial writings on the two biggest issues Democrats want to elevate during the confirmation process: a woman’s right to choose and the status of the Affordable Care Act. Kavanaugh’s opinion denying a young immigrant the right to have an abortion and his dissent in a case that upheld the ACA’s provision denying employers the power to cut off their employees’ birth control are the kind of fodder for opponents that was sorely lacking in Gorsuch’s paper trail.
Fourth, senators will also demand to see a treasure trove of documents that may unlock previously hidden aspects of Kavanaugh’s views — the hundreds of memos he wrote as a senior aide to President George W. Bush, and all memos and materials he prepared for Starr. It will be ironic, indeed, if the Trump team argues that Kavanaugh’s Starr records are off-limits — when just hours before naming Kavanaugh, Trump’s own lawyer called for access to the personal cellphone texts of every member of Special Counsel Robert S. Mueller III’s team.
And finally, Democrats are fired up and ready for the fight. While Democrats only gradually coalesced around opposition to Gorsuch — the nominee of a relatively new president — Democrats have started to announce their opposition to Trump’s second pick with stunning speed and intensity. Even Robert Casey Jr. of Pennsylvania, among the more moderate Senate Democrats, announced opposition to the nomination before the president’s address.
Democrats face an uphill fight against Kavanaugh: He is impeccably credentialed, affable, well liked and well connected. He will be a superb witness on his own behalf — and since 1930, no Supreme Court nominee has lost a confirmation vote when the president’s party controlled the Senate. But it is already clear that this is going to be a heated confirmation process, very different from Gorsuch’s cakewalk in 2017, meaning its outcome is far from a sure thing.
Ronald A. Klain is a contributing Washington Post columnist. He served as a senior White House aide to both Presidents Barack Obama and Bill Clinton and was a senior adviser to Hillary Clinton’s 2016 campaign.
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