CARBONDALE — Local legal experts say President Donald Trump’s Supreme Court pick is in line with nominees selected by the GOP establishment in recent years.
Edward Dawson, who clerked for retiring Justice Anthony Kennedy in 2004 and teaches classes on federal courts as an assistant professor at Southern Illinois University Carbondale, said Trump’s selection of federal appellate judge Brett Kavanaugh on Monday night was predictable.
“He has all of the résumé items that you’d expect from somebody who’d make the shortlist for something like that — very well politically connected on the Republican side, had worked in the judiciary and in the executive branch, so he’s not an unconventional pick, I would say,” Dawson said.
Steven Macias, an associate professor at SIU Carbondale who teaches constitutional law, said Kavanaugh and recently appointed members of the court vetted by the Federalist Society represent “a different breed of Republican” than Kennedy, who announced his retirement in late June.
“In the early 1980s, there was an orchestrated effort to try to get the courts to move right by creating this society which would help to educate people to be more ideological on judicial issues, and I think that’s the tradition from which Kavanagh is coming. So they have certain beliefs that are developed beforehand, and this is what makes them more conservative, is that they enter the job already knowing some of the outcomes that they want to achieve,” Macias said.
Like Dawson, Kavanaugh is a former Kennedy clerk — as is Neil Gorsuch, Trump’s first Supreme Court justice pick.
“The President, in picking justices to go on the court, has picked two Justice Kennedy clerks, and perhaps that’s because he wanted to make sure the justice felt comfortable retiring, but it’s hard to say,” Dawson said.
In a 2009 article for the Minnesota Law Review, Kavanaugh wrote that sitting presidents should be exempt from criminal prosecution or investigation.
“This is actually what I think President Trump was interested in, more than the nominees’ views on social issues, because there really aren’t that many clues in Kavanaugh’s background that would suggest he’s a hardliner on abortion or on same-sex marriage,” Macias said. “But there is a clear indication that he shares this right-wing, Federalist Society ideology of separation of powers, which means that the President should be invested with a strong set of executive powers.”
Macias said the nomination of Kavanaugh indicates the success of the conservative legal movement in amassing a selection of candidates who would have been ideologically similar to Kavanaugh.
“I really don’t think there’s much difference between any of those (nominees on Trump’s list). He could have closed his eyes and pointed, and we would be in the same situation,” Macias said.