President Donald Trump’s commitment to select from a widely publicized list of Supreme Court candidates may have helped win him the White House — but it has also injected unprecedented politicking into the selection process for the next justice.

Much of the jockeying has centered on D.C. Circuit Court Judge Brett Kavanaugh, who is the preferred choice of White House counsel Don McGahn, according to two Republicans close to the White House. McGahn’s backing helped Kavanaugh secure a spot on Trump’s existing Supreme Court list last November, when the president added five names.


But Kavanaugh is opposed by powerful conservatives, including Republican Sen. Ted Cruz of Texas, who has argued that once on the bench, he will disappoint the right.

And his ascendancy to the president’s list gave his detractors plenty of time to prepare a campaign against him. Working on the assumption that his connections in the White House and his formidable track record on the prestigious D.C. Circuit would make him a front-runner, his critics have for months now been circulating negative details and assessments of his record in an effort that more closely resembles a political campaign than a court nomination.

“There’s much more overt politicking going on, especially in opposition to candidates by the president’s supporters than you’ve ever seen in the process, and that just illustrates how important this seat is to conservatives,” said Shannen Coffin, who served as general counsel to former Vice President Dick Cheney.

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The rise of social media and the president’s use of it to keep the public abreast of the process has also intensified the process.

The attacks against Kavanaugh have drawn out prominent defenders, including Miguel Estrada, who became a martyr to conservatives after Democrats filibustered his 2001 nomination to the D.C. Circuit Court of Appeals. “All of these attacks on Brett Kavanaugh are deranged,” Estrada told National Review on Wednesday.

Travis Lenkner, a former Kavanaugh and Kennedy clerk, said fair-minded conservatives want to make sure Kavanaugh gets a fair shake.

“Judge Kavanaugh’s 12-year record of more than 300 opinions on issues of national importance speaks for itself. What you’re seeing are efforts by many fair, respected conservatives who are not advocating for one person over another who are going out of their way to ensure that the record is clear and accurate about Judge Kavanaugh,” said Lenkner said in an interview.

Kavanaugh has obvious appeal to the president, and the two hit it off during an Oval Office interview on Monday, according to two sources with knowledge of the situation. The judge has not one but two Yale degrees, a fact that has endeared him to the Ivy-League-obsessed president, and he has a broad view of executive power.

Shaped by his experience in the 1990s working alongside former independent counsel Ken Starr, who investigated former President Bill Clinton, Kavanaugh has argued that presidents should be shielded from lawsuits and criminal investigations.

Kavanaugh is also a lifelong D.C. resident with legions of fans in the capital, including many of his former law clerks, and a web of powerful and connected friends across the city.

“He’s obviously brilliant and a great judge. But to me, for a job like this, integrity and backbone are the most important qualities. And he’s got those in spades,” said J.D. Vance, the best-selling author and a former Kavanaugh student. Vance took to the Wall Street Journal op-ed page on Monday to make “The Case for Brett Kavanaugh.”

But the judge’s detractors are working to bring other parts of his record to light, from his ties to the George W. Bush administration to a 2011 ruling that they argue paved the way for the Supreme Court to legalize Obamacare and finally to his friendship and collaboration with a prominent judge disgraced during the #MeToo movement.

Kavanaugh’s critics have circulated a six-page opposition research document tying him to former 9th Circuit Judge Alex Kozinski, who abruptly retired in December after several of his former female clerks accused him of sexual harassment.

The document argues it is virtually impossible that Kavanaugh, who served on a screening committee for Kennedy’s Supreme Court clerkship alongside Kozinski, was unaware of Kozinski’s behavior — though nobody has stepped forward to make that explosive allegation in public.

Kavanaugh clerked for Kozinski nearly three decades ago, early in his time on the bench and before Kozinski is accused of having spoken and behaved inappropriately toward women. But the two have maintained a fruitful professional collaboration for years after.

"After these allegations were reported in the press last year, I spoke with various former Kozinski clerks — including Judge Kavanaugh. None of us, including Judge Kavanaugh, had heard of any of these troubling allegations,” said one former Kozinski clerk.

Kavanaugh declined to comment for this article.

Kavanaugh’s detractors are also drawing attention to his ties to Bush, whose administration and family are anathema to Trump. To the president, being a “Bushie” means being the sort of country-club Republican his supporters love to hate, and charges of loyalty to the former president have tripped up the hiring process of more than a few candidates to senior White House positions.

Over the past year, Trump has railed against Kirstjen Nielsen, the former Bush administration official who now runs the Department of Homeland Security, accusing her of being insufficiently tough on immigration.

Kavanaugh found both professional and personal success in the Bush administration, which landed him in his current post. After serving as staff secretary during Bush’s first term, Bush nominated him to the D.C. Circuit Court in 2003. The following year, in 2004, Kavanaugh married Ashley Estes, Bush’s longtime personal secretary.

Conservatives have also fixated on a 2011 challenge to Obamacare in which Kavanaugh ruled that the individual mandate functioned as a tax and invoked an 1867 law preventing individuals from challenging taxes before they have gone into effect. (The individual mandate went into effect in 2014.) But he also advised that, whatever its constitutional shortcomings, “Congress could eliminate any such potential problem.”

On the right, critics have blasted him for providing a “road map” to save Obamacare.

“Conservatives might argue amongst themselves about which is worse: An unelected judge opining on how a mandate to purchase a product could meet constitutional muster, or that same unelected judge giving Congress instructions on how to ensure it will,” Chris Jacobs, a former Heritage Foundation scholar and policy adviser to Bobby Jindal, wrote in The Federalist.

On a call with associates on Monday, Cruz warned that Kavanaugh is the sort of “unreliable” jurist by whom Republicans have been disappointed in the past, and he has worked to bolster the prospects of his colleague, Sen. Mike Lee (R-Utah). Sen. Tom Cotton (R-Ark.) also spoke to the president about the merits and drawbacks of each nominee, including Kavanaugh.

Kavanaugh’s supporters — and even neutral parties — are mobilizing in response to what they view as a slew of unjustified accusations as well as an unparalleled level of mud-throwing ahead of a nomination.

Ed Whelan, the president of the Ethics and Public Policy Center, is working closely with Leonard Leo, the Federalist Society’s executive vice president who is guiding the president’s search, and committed himself to neutrality. But he took to writing a series of blog posts on Wednesday in Kavanaugh’s defense “given the exceptional trashing” he has received.

“In his years on the D.C. Circuit, Judge Kavanaugh has confronted a vast array of consequential and high-profile constitutional and statutory issues and has written strong and influential opinions on these issues: on the separation of powers, administrative law, national security, the Second Amendment, religious liberty, campaign finance, international law, environmental law, antitrust, criminal law, immigration, and so much more,” Whelan wrote. “Kavanaugh’s constitutional opinions are powerfully written and are deeply grounded in text, history, and structure.”



CORRECTION: This story has been updated to correct Ed Whelan’s position on publicly commenting on the possible Supreme Court Justice nominees.