In his fast-moving search for a new Supreme Court justice to fill the seat left open by retiring Justice Anthony Kennedy, President Donald Trump has reportedly narrowed his focus to three solidly conservative federal judges.
If confirmed by the Senate, any of these three judges would tilt the balance of the court to the right for decades to come, affecting decisions on abortion, partisan gerrymandering, affirmative action, gay rights, capital punishment and more.
Trump is expected to make his final pick by the end of this week and announce his decision on Monday, July 9.
Here’s what you need to know:
Brett Kavanaugh, 53, has been a long-rising star in conservative circles. After graduating from Yale Law School and serving out three prestigious clerkships, he made his first splash in Republican politics as part of the multipronged investigation into President Bill and Hillary Clinton, led by Independent Counsel Ken Starr, in the 1990s.
Kavanaugh co-wrote a portion of the final Starr Report that made the case for Bill Clinton’s impeachment. He also led the inquiry into the death of Vincent Foster, the deputy White House counsel whose suicide became the subject of tabloids and conspiracy theories (at times peddled by Trump himself).
Two years later, Kavanaugh was part of George W. Bush’s legal team in the fight over the 2000 presidential election recount. After a Supreme Court victory for Bush essentially meant the electoral defeat of Democratic nominee Al Gore, Kavanaugh took up various roles in the Bush White House, including in the Office of the White House Counsel.
In 2003, Bush picked Kavanaugh for the high-profile U.S. Court of Appeals for the D.C. Circuit. His nomination was heavily contested in the Senate, stalling out for almost three years as Democrats accused him of being overly partisan.
“The bottom line seems simple: This nomination appears to be judicial payment for political services rendered,” Sen. Chuck Schumer (D-N.Y.) said during the initial set of confirmation hearings in 2004. Kavanaugh fought back, saying that whether someone was a Democrat or a Republican before being nominated, history suggests that individual will serve as “an independent judge under our Constitution.”
On the D.C. Circuit bench, Kavanaugh emerged as an outspoken champion of unitary executive theory, which allows for effectively unchecked presidential power over the executive branch. Kavanaugh has argued that a president shouldn’t be burdened by lawsuits, investigations and indictments, a position that may be of great interest to the White House as special counsel Robert Mueller continues his investigation into Russian meddling in the 2016 election.
Kavanaugh’s most prominent opinion on abortion rights came in 2017 when he wrote in dissent not to allow an undocumented teenager to seek an abortion while in federal custody at the U.S. border in Texas. Kavanaugh argued that the judges in the majority had created a new right for undocumented immigrant minors in U.S. government custody ”to obtain immediate abortion on demand.” He emphasized instead the government’s “permissible interests” in “favoring fetal life” and “refraining from facilitating abortion” ― language that certainly appeals to opponents of abortion rights.
Kavanaugh’s hundreds of other opinions during his 12 years on the D.C. Circuit have been reliably conservative. He “has written almost entirely in favor of big businesses, employers in employment disputes, and against defendants in criminal cases,” said Adam Feldman, a lawyer who publishes the blog Empirical SCOTUS. Kavanaugh was also consistently vocal critic of President Barack Obama’s environmental protection rules. Two of his opinions upheld Obama’s signature legislation, the Affordable Care Act. However, Kavanaugh later ruled in support of religious organizations in another case against the ACA.
CNBC reported Thursday that Kavanaugh has emerged as Trump’s top pick.
Amy Coney Barrett
Amy Coney Barrett, 46, is a former Notre Dame law professor and onetime Supreme Court clerk to conservative firebrand Antonin Scalia. She was appointed to the U.S. Court of Appeals for the 7th Circuit last year and has served on the bench for only eight months.
During the confirmation process for the 7th Circuit seat, questions from prominent Democrats about how Barrett has written about her Roman Catholic faith ― and its potential influence on her legal opinions ― helped lift her profile in conservative circles. Democrats were concerned in part over a 1998 article co-written by Barrett that argues Catholic judges should consider recusing themselves from some cases involving the death penalty because of their potential moral objections to capital punishment.
“I think whatever a religion is, it has its own dogma. The law is totally different. And I think in your case, professor, when you read your speeches, the conclusion one draws is that the dogma lives loudly within you, and that’s of concern when you come to big issues that large numbers of people have fought for years in this country,” Sen. Dianne Feinstein (D-Calif.) said at Barrett’s confirmation hearing.
At the time, Barrett rejected the notion that her faith would influence her work as a judge: “If you’re asking whether I take my faith seriously and I’m a faithful Catholic, I am, although I would stress that my personal church affiliation or my religious belief would not bear on the discharge of my duties as a judge.”
Barrett’s nomination to the 7th Circuit was also fiercely opposed by several women’s rights groups, who worried about her position on reproductive freedom. In public remarks, she has said she believes that life begins at conception and she has spoken critically of Roe v. Wade, the landmark Supreme Court case that legalized abortion nationwide in 1973.
Barrett has written that she’s not generally opposed to overturning Supreme Court precedents ― like Roe v. Wade ― if she believes they are unconstitutional. However, she also suggested in 2013 that she believes Roe v. Wade is settled law.
“I think it is very unlikely at this point that the court is going to overturn Roe, or Roe as curbed by [Planned Parenthood v.] Casey,” Barrett wrote. “The fundamental element, that the woman has a right to choose abortion, will probably stand. The controversy right now is about funding. It’s a question of whether abortions will be publicly or privately funded.”
Early in his career, Raymond Kethledge, 51, worked on Capitol Hill as Senate Judiciary Committee counsel to then-Sen. Spencer Abraham (R-Mich.). He later clerked for Justice Kennedy.
In 2006, he was nominated to the U.S. Court of Appeals for the 6th Circuit by Bush, but his confirmation was delayed due to Democratic opposition against Bush’s nominees. Kethledge finally got the Senate’s nod in 2008.
During his confirmation hearings that year, he stressed the pride he’d felt as a lawyer doing pro bono work for some low-income Detroit residents trying to keep their homes.
He also discussed presidential power, noting that the three branches of government are co-equal. “Clearly, there are limits on the executive power. There are limits on the commander-in-chief power. … I would say that no one is above the law, and that goes in wartime as well as in peacetime,” Kethledge said.
Those words might suggest he would not be as deferential to the president’s power as Kavanaugh might. Kethledge’s views could also be tested if he were to be confirmed to the Supreme Court as Mueller continues to investigate the Trump campaign.
Kethledge has been reliably conservative during his decade on the 6th Circuit, although he hasn’t been tested with tough questions on issues like abortion or gay rights. He wrote a unanimous opinion forcefully rejecting an Equal Employment Opportunity Commission lawsuit that sought to limit private employers’ use of credit checks on job applicants ― the EEOC argued the practice was racially discriminatory ― in what The Wall Street Journal’s editorial board called the “opinion of the year.” He also delivered a victory to tea party forces when he wrote an opinion ordering the Internal Revenue Service to disclose documents it created about conservative groups that it was allegedly targeting for claiming nonprofit status.
The White House has kept tabs on Kethledge for some time. He was reportedly in consideration for the last Supreme Court vacancy, which went instead to Justice Neil Gorsuch. Earlier this week, conservative pundit Hugh Hewitt called on Trump to nominate Kethledge, calling him “Gorsuch 2.0.”