Get Ready for the Bush Court

Get Ready for the Bush Court

By Daniel Malloy

Supreme Court nominee Brett Kavanaugh speaks while his wife, Ashley Estes Kavanaugh, and President Donald Trump listen after the announcement of his nomination in the East Room of the White House on July 9, 2018, in Washington, D.C.


Because the Bush legacy remains strong.

By Daniel Malloy

Few people in his position know the space so well. Brett Kavanaugh learned the nooks and crannies of the White House when he was working in the counsel’s office, helping select conservatives to fill the federal judiciary, and then as George W. Bush’s staff secretary — an immensely important position that manages the paper crossing the president’s desk. On Monday night, he spoke from the East Room, with his wife (they started dating while working at the White House) and daughters at his side. The room was dotted with Kavanaugh pals.

Behind him stood the current president, looking upon the manifestation of so much of what he ran against. But Donald Trump, for once, went with the safe play — all but cementing a Bush Supreme Court.

Think about it. While we should point out Kavanaugh’s confirmation is no sure thing, with the left set to unleash a senatorial lobbying campaign like no other with abortion rights on the line, if Kavanaugh does join the court, the conservative majority will be composed of the following:

  1. A George H.W. Bush SCOTUS and appeals court nominee (Clarence Thomas) 
  2. A George W. Bush SCOTUS nominee who advised Gov. Jeb Bush during the 2000 Florida recount (John Roberts) 
  3. A George W. Bush SCOTUS nominee who was nominated to an appeals seat by George H.W. Bush (Samuel Alito) 
  4. A deputy attorney general in George W. Bush’s Justice Department, later nominated by Bush to an appeals judgeship (Neil Gorsuch) 
  5. Brett Kavanaugh

Trump can certainly claim credit for the final two, and he will. Repeatedly. But with this pick, he had options on the table to swing away from the establishment he so loathes. The other finalists — judges Thomas Hardiman, Raymond Kethledge and Amy Coney Barrett — came from Trump country, places like Michigan and western Pennsylvania that were crucial to his victory. Some even (gasp!) came from outside the Ivy League.

Kavanaugh, 53, a Yale Law grad from Maryland, has spent the vast majority of his life inside the Beltway. He’s been a fixture in Republican political circles since he was a young attorney working under Special Counsel Ken Starr investigating President Bill Clinton. Trump “talks about coastal elites and criticizes them, and you couldn’t find anybody who’s much more elite or from the swamp than Kavanaugh,” says Carl Tobias, a University of Richmond law professor who closely tracks judicial nominations.

Trump has capitulated to the swamp in other areas. What’s far more remarkable here is that for his Bachelor-style rose ceremony, he selected a Bushie. Neither 41 nor 43 voted for Trump, their fellow Republican. Trump dispatched “low energy” Jeb Bush during primary season with particular glee. His victory wrestled the GOP from the family that had dominated the scene for so long, a repudiation of the Bush style as much as its politics. Kennebunkport out, Mar-a-Lago in. In office, Trump’s stances on trade, international institutions like NATO and immigration have spun the Republican Party far from anything the Bushes dreamed.

But they won’t go down without a fight, from Poppy Bush still kicking at 94 to the family’s legacy. Kavanaugh on Monday night brought up the Sept. 11 attacks, briefly name-dropping George W. Bush in a context even Trump couldn’t find fault with. One of Kavanaugh’s calling cards on the D.C. Circuit Court of Appeals has been his expansive view of executive power, a perspective he brought with him from having a front-row seat to the fight against terrorism and the supercharging of the post-9/11 security state. Those powers, embraced by Bush’s successors in both parties, appear poised to long outlive “compassionate conservatism” in American life and American law. Kavanaugh has also made clear he would back executive authority in another arena — immunity for the president from prosecution while he’s in office. In his new Supreme Court nominee, Trump may just have found a way to secure the Bush legacy along with his own.