(UPDATE, 7/9/18, 9:24 PM ET: President Trump has appointed Brett Kavanaugh to the Supreme Court.)
Brett Kavanaugh, one of President Trump’s finalists to replace retiring Supreme Court justice Anthony Kennedy, once wrote that presidents should be free from criminal investigations while in office.
Kavanaugh — who sits on the powerful U.S. Court of Appeals for the DC Circuit — is likely the top contender for the Supreme Court seat vacated by Anthony Kennedy’s retirement ever since The Federalist Society’s Leonard Leo, who advises Trump on Supreme Court picks, singled him out as one of two finalists for the job.
His resume is long, and unlike competing finalist Amy Coney Barrett, he has no personal skeletons that Democrats can exploit during the confirmation process. As a sitting member of the judicial body widely regarded as the most powerful in the country second to the Supreme Court itself, Kavanaugh has a wealth of experience on the bench that will provide him with enough bona fides to satisfy questions of whether or not he’s capable to do the job. And as a former clerk for Justice Kennedy, Kavanaugh would be a reliable conservative vote on the court, paving the way for the Roberts Court to continue its record as one of the most pro-corporate Supreme Courts in generations.
However, the reason Trump may end up picking Kavanaugh is likely due to his philosophy that no sitting president should be subjected to civil or criminal legal proceedings while in office due to the responsibilities of the Oval Office.
In a 2009 article for the Minnesota Law Review, Kavanaugh wrote that a president having to endure criminal investigations or civil lawsuits “would ill serve the public interest, especially in times of financial or national security crisis,” and that impeachment by Congress would serve as appropriate accountability for any illegal action a president took while in the White House.
Obviously, given the growing intensity of Special Counsel Robert Mueller’s criminal investigation into whether or not the Trump campaign colluded with Russia in order to win the 2016 presidential election — which has already secured multiple guilty pleas from close associates of President Trump — Kavanaugh’s opinion of executive privilege taking precedent over criminal inquiries puts him in top contention for the vacant SCOTUS seat. Particularly when considering that the Supreme Court is likely to weigh in on any constitutional issues that come up from the Mueller probe, as it did during the Watergate scandal during the Nixon administration.
Kavanaugh will likely be questioned on whether or not he still stands by his 2009 Minnesota Law Review article during the confirmation process if he is to be appointed. Trump is expected to announce his pick on Monday.
Jake Shepherd is a freelance writer from Cleveland, Ohio. He enjoys poring through financial disclosure statements, spirited debate, and good scotch. He remains eternally optimistic about the Browns. Email him at jake.d.shepherd.21 (at) hotmail (dot) com.