Kevin Daley, DCNF
President Donald Trump’s top two contenders to replace retiring Supreme Court Justice Anthony Kennedy are Judges Brett Kavanaugh and Amy Coney Barrett, The Daily Caller News Foundation has learned.
Trump has committed to revealing his nominee July 9 and noted he will interview approximately six to seven candidates for the position over the coming week, including two women.
Sources involved in the process say an anti-Kavanaugh whisper campaign has been under way since the news of Kennedy’s retirement broke, with concerns about his record and Bush ties being touted. Kavanaugh has spent some two decades in Washington’s rarefied legal circles, first in private practice, then in the George W. Bush White House, and finally on the appeals court. As such, he has well-placed allies around the capital.
Multiple sources involved in the selection process inside and outside the administration told TheDCNF that the most serious consideration is being given to Kavanaugh and Barrett, two conservative justices included on Trump’s previously released list of potential nominees.
Kavanaugh maintains a sterling reputation in Washington, though sources familiar with Trump’s thinking say he is likely to be turned off by the judge’s former work with Bush and his marriage to Bush’s former secretary. The judge also maintains extensive social ties with former members of the administration.
A White House spokesman declined to comment on Trump’s concerns with respect to Kavanaugh’s marriage. Administration officials acknowledged that Kavanaugh and Barrett are in strong contention for the nomination, but that three others are also being considered.
White House Press Secretary Sarah Huckabee Sanders said Monday that “the White House Counsel’s Office, led by Don McGahn, will again oversee the selection and overall confirmation process,” and that “the Department of Justice is fully engaged to support the nomination and confirmation efforts.”
Since joining the U.S. Court of Appeals for the D.C. Circuit, Kavanaugh has developed a reputation as a text-driven judge and careful tactician. Democratic appointees have a seven-to-four majority on the Washington-based appeals court, prompting Kavanaugh to take defensive positions in high-profile cases where conservatives might otherwise prefer a more aggressive approach.
For example, a recent D.C. Circuit case asked whether the Trump administration is obligated to facilitate abortions for alien minors in federal custody. Rather than reach the merits of that issue, Kavanaugh and another judge issued a short order proposing a compromise which gave the government 11 days to find a guardian who would procure the procedure for the minor at issue. The compromise, ultimately unsuccessful, may have been an attempt to stop the court’s Democratic majority from expanding abortion rights.
Barrett, by contrast, is a newcomer to the federal bench who was elevated to the 7th U.S. Circuit Court of Appeals just eight months ago. Before joining the Notre Dame law faculty, she was a law clerk to the late Justice Antonin Scalia and practiced at a Washington-based boutique called Miller Cassidy.
While her judicial experience is limited, sources close to the process have compared her to Justice Elena Kagan. Though they are not ideologically similar, both women spent a significant portion of their career in the legal academy where they generated large bodies of scholarship, and both are considered rigorous thinkers who engaged practical, if highly technical, legal issues.
Barrett’s name has been especially embraced and pushed by outside conservatives. These include Family Research Council president Tony Perkins, Bloomberg columnist Ramesh Ponnuru and New York Times columnist Ross Douthat.