Two Judges Exemplify the Choice Trump Faces in a Supreme Court Pick

Judge Brett M. Kavanaugh was sworn in to the United States Court of Appeals for the District of Columbia Circuit by Justice Anthony M. Kennedy in June 2006.

WASHINGTON — One is a creature of Washington with two Yale degrees, a ticket-punching résumé that includes stints in the Justice Department, the Bush White House and a federal appeals court, where he has written some 300 opinions.

The other, a former law professor, has been a judge for less than a year but could become the first woman named to the Supreme Court by a Republican president since 1981 — thanks in large part to a memorable exchange with Senator Dianne Feinstein, the ranking Democrat on the Senate Judiciary Committee, over her religious beliefs.

The fight over who should replace Justice Anthony M. Kennedy on the Supreme Court is far from over, and there are still a half-dozen plausible candidates in the mix. But the stark contrast between two of the leading contenders — Judge Brett M. Kavanaugh and Judge Amy Coney Barrett — reflects the division on the right between the conservative legal establishment, which is hostile to government regulation and the administrative state, and social conservatives, who are focused on issues like abortion and religious freedom.

Other candidates, notably Judges Raymond M. Kethledge and Amul R. Thapar, both of the Sixth Circuit, in Cincinnati, have had cordial meetings with President Trump, and a White House spokesman said Mr. Trump interviewed three more possible choices on Tuesday.

But according to a person close to the president, Judge Kavanaugh, who has served 12 years on the United States Court of Appeals for the District of Columbia Circuit, is the leading candidate in the president’s mind, followed by Judge Barrett and then Judge Kethledge. Mr. Trump believes Judge Kavanaugh has been on the bench long enough to give the president a sense of where he stands on various issues and that Judge Barrett is fairly young and could use more judicial experience. The administration might want to keep her in reserve should Justice Ruth Bader Ginsburg, 85, leave the court.

The person close to the president cautioned that Mr. Trump could still change his mind between now and Monday, when the White House has said the choice will be announced.

That will be the end of an unusually raw rift in the conservative legal movement, one in which Judges Kavanaugh and Barrett have come to exemplify the clashing values and priorities of the Trump administration and its supporters.

“A lot of social conservatives have coalesced around Amy,” said Jonathan H. Adler, a law professor at Case Western Reserve University, who said he knows and admires both judges. “The business folks and the D.C. folks tend to pull for Brett a little more.”

While Judge Kavanaugh, 53, has long been thought to be the front-runner and a favorite of Donald F. McGahn II, the White House counsel, he has in recent days faced mounting opposition from social conservatives for aspects of his résumé.

His work in the George W. Bush administration; the perception that his opposition in his judicial opinions to abortion and Obamacare was insufficiently adamant; and even a 1991 clerkship with Judge Alex Kozinski, a former federal Ninth Circuit judge who retired last year after accusations of sexual misconduct, have all come into question.

At the other end of the spectrum is Judge Barrett, 46, who has emerged as a favorite candidate of many conservative Christian leaders — both evangelicals and Catholics — who have championed her cause.

During her confirmation hearing for the appeals court position, Ms. Feinstein questioned Judge Barrett about her public statements. “You have a long history of believing that your religious beliefs should prevail,” Ms. Feinstein told her. “The dogma lives loudly within you.”



Trump’s Top Supreme Court Contenders on Abortion

Judges Amy Coney Barrett, Brett Kavanaugh and Raymond Kethledge are among the frontrunners to replace Justice Anthony Kennedy. Here’s a look at some of their remarks about reproductive rights.

Justice Anthony Kennedy is leaving the Supreme Court. He’d been a key vote in decisions upholding abortion rights. But President Trump has said he wants to appoint a pro-life judge. “Under my administration we will always defend the right to life.” Here’s what three frontrunners have already said about abortion, and the landmark abortion rights case Roe v. Wade. Judge Amy Coney Barrett has been championed by Christian conservatives. At a nomination hearing for a federal appellate court last year, Democrats asked her how her Catholic faith may factor into her decision making. “You have a long history of believing that your religious beliefs should prevail. Well, how do you evaluate the precedents — plural — with respect to Roe?” “The Supreme Court precedents?” “Yes.” “It’s not open to me, or up to me, and I would have no interest in, as a court of appeals judge, challenging that precedent. It would bind.” In a 2016 discussion, she said she could envision the scope of abortion rights changing. “I don’t think the core case — that Roe’s core holding that, you know, women have a right to an abortion — I don’t think that would change. But I think the question of whether people can get very late-term abortions, you know, how many restrictions can be put on clinics, I think that would change. Next is Judge Brett Kavanaugh. Before he became a federal appellate court judge, he helped the Bush administration fill the federal courts with conservative judges. But he skirted the issue of where they stood on reproductive rights. “The abortion issue was put forward by the Bush administration, as the sole litmus test. Let me ask you this: Could you identify five pro-choice judges —” “I —” “that the White House sent to the Hill?” “I don’t know whether the nominees are pro-choice or pro-life unless —” “Four, three, two, one?” “Senator, I’m sure there are many. I don’t know what someone’s who – I don’t know and we don’t ask what someone’s position on issues like that is.” And finally, there’s Judge Raymond Kethledge. He hasn’t talked publicly about Roe v. Wade., but he has spoken about the nature of Supreme Court precedent. “First and foremost, I’d follow Supreme Court precedent. The other thing I would say is that, again, I would make sure that the values that I would be enforcing if I were a judge are not just my values, that I am not striking something down simply because I don’t like it.” President Trump said he will announce a Supreme Court nominee in the coming days.

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Judges Amy Coney Barrett, Brett Kavanaugh and Raymond Kethledge are among the frontrunners to replace Justice Anthony Kennedy. Here’s a look at some of their remarks about reproductive rights.

That phrase is now a slogan in the culture wars, and it appears on T-shirts, tote bags and coffee mugs, and some social conservatives hope a Barrett confirmation battle would energize and unite the president’s base before November’s midterm elections.

Social conservatives have told Mr. Trump that nominating Judge Barrett would lead to a fight worth having, even at the cost of a failed nomination.

“It is better to have a vacancy until next year than to fill the seat with a weak nominee who will betray your legacy and the Constitution for the next 40 years,” leaders of the American Family Association, the American Principles Project and the Judicial Action Group wrote in a letter last week.

Terry Schilling, the executive director of the American Principles Project, said Judge Barrett was the more solid choice, likening her to Justice Antonin Scalia, for whom she served as a law clerk, and Justice Neil M. Gorsuch, who replaced Justice Scalia after his death in 2016.

Judge Kavanaugh, by contrast, was a law clerk to Justice Kennedy, who often disappointed social conservatives in abortion and gay rights cases.

“The point is to get someone more solid than Kennedy on these issues,” Mr. Schilling said. “Conservatives would have more confidence in Barrett than Kavanaugh.”

Both judges are Catholic and both have been vetted by the Federalist Society, a conservative legal group that has played a central role in judicial nominations in the Trump administration. But Judge Kavanaugh has written more on some of the issues that most concern the group, including interpreting statutes by hewing closely to their text, reading the Constitution as it was understood by those who drafted and ratified it and questioning the legitimacy of the administrative state.

Judge Barrett’s academic writing has focused on the power of precedent and the role religion may play in judging.

Judge Kavanaugh has long been a star, and many were surprised when his name did not appear on lists of potential justices circulated by Mr. Trump’s 2016 presidential campaign. The omission may have been the consequence of a nuanced opinion on President Barack Obama’s health care law that was thought by some on the right to betray an inadequate commitment to ideological purity.

True, Judge Kavanaugh dissented from a 2011 decision upholding the health care law, but he did so on jurisdictional grounds. He similarly did not go as far as he might have in his dissent from a recent decision allowing an undocumented teenager in federal custody to obtain an abortion.

Judge Kavanaugh said the majority’s ruling was “based on a constitutional principle as novel as it is wrong: a new right for unlawful immigrant minors in U.S. government detention to obtain immediate abortion on demand.” He said he would have given the government more time to find a sponsor for the teenager.

But Judge Kavanaugh did not join a separate dissent from Judge Karen LeCraft Henderson, who wrote that the teenager had no right to an abortion because she was not a citizen and had entered the country unlawfully.

After Justice Kennedy leaves the court at the end of the month, its remaining members will be a study in homogeneity — all attended law school at Harvard or Yale.

By those measures, a Justice Kavanaugh would represent more of the same, though he would move the Harvard-to-Yale balance of power from 6-3 to the ratio more commonly associated with the Supreme Court: 5-4.

Judge Barrett, by contrast, graduated from Rhodes College in Memphis and from Notre Dame Law School, and she serves on an appeals court in Chicago.

After his clerkship, Judge Kavanaugh worked under Kenneth W. Starr, the independent counsel who investigated President Bill Clinton. He also held several posts in Mr. Bush’s administration, ultimately serving as his staff secretary.

Those experiences prompted Judge Kavanaugh to publish academic writings on the role of presidential power.

“I believe that the president should be excused from some of the burdens of ordinary citizenship while serving in office,” Judge Kavanaugh wrote in 2009 in The Minnesota Law Review. Among those burdens, he said, were responding to civil lawsuits and criminal charges.

“Even the lesser burdens of a criminal investigation — including preparing for questioning by criminal investigators — are time-consuming and distracting,” Judge Kavanaugh wrote. “Like civil suits, criminal investigations take the president’s focus away from his or her responsibilities to the people. And a president who is concerned about an ongoing criminal investigation is almost inevitably going to do a worse job as president.”

Judge Kavanaugh said the proceedings could resume after a president left office and that impeachment remained an option. Those comments, after an investigation of Mr. Clinton in which a young Mr. Kavanaugh had participated, would seem to be a mark of reflection and independence. But Democrats may worry that a Justice Kavanaugh would be inclined to vote to limit the investigation of Robert S. Mueller III, the special counsel looking into connections between the Trump campaign and Russia.

Judge Barrett’s academic writings have also attracted attention.

In 1998, writing with John H. Garvey, now the president of Catholic University of America, she suggested that Catholic judges should recuse themselves in some death penalty cases that might conflict with their religious beliefs.

In a 2013 law review article, she examined the role of the doctrine of stare decisis, which is Latin for “to stand by things decided” and is shorthand for respect for precedent. The doctrine is, Judge Barrett wrote, “not a hard-and-fast rule in the court’s constitutional cases,” and she added that its power is diminished when the case under review is unpopular.

“The public response to controversial cases like Roe,” she wrote, “reflects public rejection of the proposition that stare decisis can declare a permanent victor in a divisive constitutional struggle.”

During her confirmation hearings, Judge Barrett repeatedly insisted that a judge should not impose her personal convictions on the law. She also said several times that as an appeals court judge, she would follow Supreme Court precedent on abortion. But she declined to answer whether she was personally opposed to abortion.

After Ms. Feinstein’s reference to dogma, Ms. Barrett’s defenders objected that Democrats were biased against Ms. Barrett because she is a Catholic. The presidents of the University of Notre Dame and Princeton University wrote letters to the committee warning that the Constitution bars religious tests for government positions.

The uproar continued after a report that Ms. Barrett has long been active in a small, obscure Christian group called the People of Praise, and that the group had removed online references to her membership after she was nominated by Mr. Trump. Judge Barrett was raised in the group, married another member and together they are raising their seven children in it, according to people who know the couple.

Professor Adler said the attacks on the two judges were but a taste of the barrage of criticism any eventual nominee will receive.

“Both of them are incredibly smart, incredibly capable,” he said. “Neither of them will deserve what’s coming if either of them is nominated.”

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