It’s too soon to know what kind of fight President Donald Trump has on his hands in nominating federal judge Brett Kavanaugh to the Supreme Court. But one thing is clear: If Trump thinks this is going to be Gorsuch 2.0 — a relatively smooth process that inured to the president’s political benefit on the way to an inevitable confirmation — he is mistaken. There are five reasons the Kavanaugh confirmation battle will diverge from Justice Neil Gorsuch’s path to the court.
First, the stakes are so much higher. A Gorsuchfor-Antonin Scalia swap did not significantly alter the balance on the court. Kavanaugh replacing Justice Anthony Kennedy will have a very different impact on the court, leading to a very different kind of fight.
Second, Trump picked the only potential high court candidate who assures that the confirmation hearings will be dominated by a discussion of Trump’s vulnerability to criminal proceedings as a sitting president. The Kavanaugh hearings — thanks to the nominee’s efforts to first prosecute President Bill Clinton, then expound the view that a president should be exempt from any criminal proceedings while in office—guarantee that Trump’s legal troubles will be front and center in the Senate Judiciary Committee’s hearings.
Third, Trump picked the only finalist with judicial writings on the two biggest issues Democrats want to elevate during the confirmation process: a woman’s right to choose and the status of the Affordable Care Act.
Fourth, senators will also demand to see a treasure trove of documents that may unlock previously hidden aspects of Kavanaugh’s views.
And finally, Democrats are fired up and ready for the fight.
Democrats face an uphill fight against Kavanaugh: He is impeccably credentialed, affable, well liked and well connected. He will be a superb witness on his own behalf. And since 1930, no Supreme Court nominee has lost a confirmation vote when the president’s party controlled the Senate. But it is already clear that this is going to be a heated confirmation process, very different from Gorsuch’s cakewalk in 2017, meaning its outcome is far from a sure thing.