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

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.

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Two Judges Exemplify the Choice Trump Faces in a Supreme Court Pick
By
Adam Liptak
, New York Times

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 Sen. 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 6th U.S. Circuit Court of Appeals, in Cincinnati, have had cordial meetings with President Donald Trump, and a White House spokesman said Trump interviewed three more possible choices Tuesday.

But according to a person close to the president, Kavanaugh, who has served 12 years on the U.S. Court of Appeals for the District of Columbia Circuit, is the leading candidate in the president’s mind, followed by Barrett and then Kethledge. Trump believes Kavanaugh has been on the bench long enough to give the president a sense of where he stands on various issues and that 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 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 Kavanaugh and Barrett have come to exemplify the clashing values and priorities of 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 Kavanaugh, 53, has long been thought to be the front-runner and a favorite of Don McGahn, the White House counsel, he has in recent days faced mounting opposition from social conservatives for aspects of his résumé.

His work in the Bush administration; the perception that his opposition in his judicial opinions to abortion and the Affordable Care Act was insufficiently adamant; and even a 1991 clerkship with Judge Alex Kozinski, a former federal 9th Circuit judge who retired last year after accusations of sexual misconduct, have all come into question.

At the other end of the spectrum is 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, Feinstein questioned Barrett about her public statements. “You have a long history of believing that your religious beliefs should prevail,” Feinstein told her. “The dogma lives loudly within you.”

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 Trump that nominating 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, executive director of the American Principles Project, said 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 Scalia after his death in 2016.

Kavanaugh, by contrast, was a law clerk to 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,” Schilling said. “Conservatives would have more confidence in Barrett than Kavanaugh.”

Both judges are Catholics and both have been vetted by the Federalist Society, the conservative legal group that has played a central role in judicial nominations in the Trump administration. But 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.

Barrett’s academic writing has focused on the power of precedent and the role religion may play in judging. Kavanaugh has long been a star, and many were surprised when his name did not appear on lists of potential justices circulated by the Trump campaign during his candidacy. 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.

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 might have in his dissent from a recent decision allowing a teenage immigrant in federal custody to obtain an abortion.

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 Kavanaugh did not join a separate dissent from 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 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, 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.

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

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

Those experiences prompted 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,” Kavanaugh wrote in The Minnesota Law Review in 2009. Among those burdens, he said, were responding to lawsuits and criminal charges.

“Even the lesser burdens of a criminal investigation — including preparing for questioning by criminal investigators — are time-consuming and distracting,” 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.”

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

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, she 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, 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 Feinstein’s reference to dogma, Barrett’s defenders objected that Democrats were biased against Barrett because she is a Catholic. The presidents of 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 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 Trump. 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.

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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