“It is my honor and privilege to announce that I will nominate Brett Kavanaugh to the US Supreme Court,” Trump said when making the announcement.
Kavanaugh’s nomination sets up what is expected to be a brutal confirmation battle with Democrats as Trump seeks to shift the nation’s highest court further to the right.
Who is Brett Kavanaugh?
Federal appeals Judge Brett Kavanaugh is a longtime judge and former clerk of retiring Justice Kennedy.
He has amassed a solidly conservative judicial record since 2006 on the influential US Court of Appeals for the District of Columbia Circuit
Some conservatives have expressed concerns about the 53-year-old, questioning his commitment to social issues like abortion and noting his time serving under President George W Bush as evidence he is a more establishment choice. But his supporters cite his experience and wide range of legal opinions.
Kavanaugh is likely to be more conservative than Justice Kennedy on a range of social issues. At the top of that list is abortion.
He recently voiced disagreement with a court decision allowing an undocumented teenage immigrant to get an abortion.
“My judicial philosophy is straightforward: a judge must be independent and must interpret the law, not make the law,” Kavanaugh said after being nominated. “A judge must interpret statutes as written,” he added as he underscored his ties to his family and his Roman Catholic faith. “And a judge must interpret the Constitution as written, informed by history, and tradition and precedent.”
Trump had kept quiet on his shortlist of candidates before Monday’s announcement, but top contenders for the role also included Raymond Kethledge, Amy Coney Barrett and Thomas Hardiman.
The candidates, including Kavanaugh, were part of a longer list of 25 names vetted by conservative groups.
What’s at stake?
Though appointed by a Republican, outgoing Justice Kennedy was often a swing vote on the nine-member court.
Trump’s choice will dramatically affect many aspects of American life, from abortion to voting rights to the environment.
While Kennedy was conservative on firearms and election financing, he could be more progressive on issues such as abortion and affirmative action.
An example of this came in 2015, when, thanks to him, same-sex marriage was legalised across the United States.
As a result, Democrats – unable to block the nominee unless they lure some Republican senators to their side – have stressed the high stakes of the president’s decision as they prepare for the confirmation battle ahead.
They fear Trump’s pick could shift the court’s ideological balance and thereby place women’s reproductive rights, healthcare and LGBT rights at risk.
It’s never a guarantee that a judge will vote any particular way, however. Retired Justice David Souter was considered a “home run” for conservatives when he was nominated by President George HW Bush but became a generally liberal vote for most of his 18 years on the court.
Roe v Wade
Of particular concern for abortion rights advocates is the landmark 1973 Roe v Wade decision, which protects a woman’s right to abortion.
Top Senate Democrat Chuck Schumer called Trump recently to warn it would be “cataclysmic” for national unity if he nominated someone hostile to Roe v Wade, according to a person familiar with the discussion, the Associated Press reported.
During the 2016 campaign, Trump said he would put “pro-life justices on the court”, thrilling his grassroots base although polls show most Americans support abortion rights.
Abortion opponents were disappointed in 1992 when three Republican appointees – Kennedy, Souter and Sandra Day O’Connor – agreed to reaffirm the 1973 decision.
But with Souter and O’Connor no longer on the court and Kennedy on his way out, abortion rights are clearly on the minds of many voters.
What are Republicans and Democrats saying?
Democratic legislators, a minority in both houses of Congress, have acknowledged there is no clear path to block Trump’s pick for the appointment.
While the US Senate once required a 60-vote supermajority – to overcome blocking tactics against Supreme Court nominees – the Republican majority changed the rules last year during the debate on Justice Neil Gorsuch, who was nominated by Trump. Similar rules were changed by the Democrats in 2013 for lower court nominations.
Senate rules now require only a simple majority of votes to confirm a Supreme Court nomination.
Republicans currently control 51 of the 100 Senate seats, although one of their number, Senator John McCain, is at home in Arizona battling cancer.
Democrats had asked McConnell to delay a vote until after November, noting that Republicans blocked President Barack Obama’s nominee Merrick Garland before the 2016 election. But Republicans scoffed at that suggestion, pointing out Obama nominated Justice Elena Kagan in advance of the 2010 midterm elections.
For Democrats, the focus is on two Republicans: Senator Susan Collins of Maine and Lisa Murkowski of Alaska. Both support a woman’s right to have an abortion and will be looking for assurances that the nominee would not overturn Roe v Wade.
On the Democratic side, the focus will be on Senators Heidi Heitkamp of North Dakota, Joe Donnelly of Indiana and Joe Manchin of West Virginia.
All three voted to confirm Gorsuch and are up for re-election in states that Trump won. Whatever they decide will upset a large group of voters in their home states.
If Collins and Murkowski vote “no” and all Democrats vote “no”, the nomination would be blocked. If McCain were to miss the vote, only one GOP defection would be needed to block the nomination if all Democrats were opposed.
The Democrats are using the nomination to make the case that their supporters have to get out and vote so Democrats can regain control of Congress, and eventually the White House.
Advocacy groups also play an important role in the process.
Groups that support abortion rights are planning a “Day of Action” for August 26, the anniversary of the 1920 adoption of the 19th Amendment giving women the right to vote.
The liberal advocacy group Demand Justice will spend $5m on ads through September.
Meanwhile, the conservative Judicial Crisis Network is targeting vulnerable Democratic incumbents in its ad campaigns. The deep-pocketed group advertised against Senate confirmation of Garland and spent millions more advocating for Gorsuch.
What happens next?
Following Trump’s announcement, a series of meetings between individual senators and Kavanaugh will take place before confirmation hearings begin.
Much of the groundwork for a successful confirmation takes place in these private meetings. For legislators who are not on the Judiciary Committee, it may be their only chance to talk to Kavanaugh personally before a final vote.
Neil Gorsuch met nearly three-quarters of the Senate in advance of his hearings.
The Senate’s Republican leadership has said it aims to complete the confirmation process before November’s midterm elections.
It’s hard to say when the confirmation hearings will take place, though many speculate they will be scheduled for the end of August since the Senate will be in session that month.
The hearings take place with the Senate Judiciary Committee, which has 11 Republicans and 10 Democrats.
Hearings for the most recent nominees to the Supreme Court have lasted four or five days, though there were 11 days of hearings for Robert Bork’s nomination in 1987.
The Judiciary Committee does not need to approve the nomination for it to advance. A negative or no recommendation merely alerts the Senate that a substantial number of committee members have reservations.
The final vote by the Senate usually takes place a week or two weeks after the hearings.
Why does the Supreme Court nomination matter?
The Supreme Court is the ultimate check on the president and Congress.
The appointment is for life, or until the person retires, to insulate the court from politics. That means anyone appointed to the court can influence decisions long after the president who appointed them leaves office.
Conservatives already have a 5-4 majority on the court. But that majority hasn’t always been reliable, in part because of Kennedy, who became the court’s most frequent tie-breaker and swing vote.
Who are the other Supreme Court justices?
The Supreme Court consists of nine justices. There are currently five, including outgoing Kennedy, who were nominated by Republican presidents and four nominated by Democratic presidents.
Nominated by a Republican:
Chief Justice John Roberts was nominated by George W Bush in 2005. The 63-year-old was initially nominated as an associate justice to replace retiring Justice Sandra Day O’Connor, but when William Rehnquist died before Roberts’ confirmation hearings began, Bush nominated him as chief justice.
Samuel Alito was nominated by George W Bush in 2005 to replace retiring Justice Sandra Day O’Connor. The 68-year-old was confirmed in late January 2006 after a failed attempt at a filibuster.
Clarence Thomas was nominated by George HW Bush 1991 to replace retiring Justice Thurgood Marshall. The 70-year-old was confirmed in October of that year.
Neil Gorsuch was nominated by Donald Trump in 2017. The 50-year-old succeeded Justice Antonin Scalia who died in February 2016. Scalia’s death prompted a showdown between then-President Barack Obama and the Republican-controlled chamber that confirms Supreme Court nominees. Senate Majority Leader Mitch McConnell refused to hold a hearing for Obama’s nominee, Chief Judge Merrick Garland, for nearly a year – an action that continues to galvanise Democrats.
Anthony Kennedy was nominated by Ronald Reagan in 1987 and sworn in the following year. The 81-year-old announced his retirement at the end of last month, saying it was the “highest of honours” to serve on the court. His retirement takes effect on July 31.
Nominated by a Democrat:
Ruth Bader Ginsburg was nominated by Bill Clinton in 1993 to replace retiring Justice Byron White. The 85-year-old was confirmed the same year. She is the second female justice to serve on the court.
Stephen Breyer was nominated by Bill Clinton in 1994 to replace retiring Justice Harry Blackmun. The 79-year-old was confirmed the same year.
Sonia Sotomayor was nominated by Barack Obama in 2009 and confirmed the same year. She is the third female justice to serve on the court and the first justice of Hispanic descent. The 64-year-old replaced Justice David Souter.
Elena Kagan was nominated by Barack Obama in 2010 and confirmed the same year. She replaced retiring Justice John Paul Stevens. The 58-year-old is the fourth female justice to serve on the court. She is also the first justice to be appointed without any prior judicial experience since William Rehnquist’s appointment in 1972.