- President Donald Trump named judge Brett Kavanaugh as his nominee for the Supreme Court on Monday night, and the Senate is gearing up for his confirmation.
- Troy Covington, counsel at Bloom Parham and a legal expert, spoke to Business Insider about what issues will come up in Kavanaugh’s confirmation and how the judge could influence the court.
- Covington said Kavanaugh’s previous writings on indictments of sitting presidents will be of particular interest to lawmakers.
On Monday night, President Donald Trump announced his nomination of current federal appeals court judge Brett Kavanaugh to fill the Supreme Court seat vacated by Justice Anthony Kennedy’s retirement – and Kavanaugh’s appointment could be one of the most influential in recent history.
Troy Covington, counsel at the Bloom Parham firm in Atlanta and a legal expert with experience in Supreme Court issues, spoke to Business Insider on Tuesday about what Senators will likely focus on during Kavanaugh’s confirmation process and the long-term influence Kavanaugh could exert on the court.
“I think it will be a very noisy confirmation process,” he said. “I think we’ve already seen people on both sides lining to start putting pressure on Senators to vote one way or another. But from a process standpoint … there really is not much the Democrats as the minority party can do to get in the way of that other than to make as much noise as possible.”
Both Democrats and Republicans are seizing on Kavanaugh’s confirmation as the midterms approach, with both sides galvanizing their respective bases around the issue.
One issue that will be of particular interest to both Democratic and Republican senators is an opinion expressed in some of Kavanaugh’s previous writings, particularly in a 2009 article published in the Minnesota Law Review, that the president should be exempted from criminal prosecution, indictment, and being civilly sued while in office to prevent distraction and harms to the federal government’s function.
Questions of this nature could end up being decided by the court in the coming months, as Trump is a subject of special counsel Robert Mueller’s investigation into Russian interference in the 2016 election and the Trump campaign’s possible role in it. He is also the main defendant in at least two high-profile lawsuits, one filed by porn star Stormy Daniels and another defamation suit by former “Celebrity Apprentice” contestant Summer Zervos.
“I think Judge Kavanaugh has a record of being in favor of a strong executive. He will get a lot of questions from senators of both parties that reach into his background, and then they’ll delve into the Minnesota Law Review article and try to figure out how this will play out going forward,” Covington said.
Covington said that depending on if these issues reached the court, Kavanaugh and possibly Justice Neil Gorsuch might even be expected to recuse themselves from such a case due to them being nominated by Trump.
“He was nominated by President Trump, he owes his nomination to President Trump, and with an issue of this magnitude regarding President Trump, will he be able to be independent and evaluate the arguments on both sides with no feeling of obligation or being beholden to the person who put him in the job in the first place?” Covington wondered.
Leaving the Russia issue aside, Covington predicted that a Justice Kavanaugh would be more solidly conservative than Justice Kennedy, putting Chief Justice John Roberts in the position of the swing vote.
“Justice Roberts is a slightly different position as chief Justice. He has to care more about the court’s legacy,” Covington explained.
While the Democrats are framing a vote to confirm Kavanaugh as “a vote to rip health care from American families and deny women their right to make their own health care choices,” Covington doesn’t believe his presence on the court would dramatically swing it’s decisions one way or another.
‘It’s relatively safe to assume that you would see some incremental movement to the right’
“I don’t think that if he were to be confirmed, we would see large and sudden shifts in the way the court goes about its business,” Covington said, adding that “It’s relatively safe to assume that you would see some incremental movement to the right, simply because he will be more conservative, in some ways, that Justice Kennedy was.”
While Kavanaugh has an impressive and lengthy resume in government and federal judicial service, he is just 53 years old, meaning that if he’s confirmed, he could influence the court’s direction for decades to come.
“I don’t think it’s an overblown statement to say it’s one of the most important nominations for the court in a very long time,” Covington concluded.