Supreme Court contender Kavanaugh faces pushback from social conservatives

Brett Kavanaugh, a top contender to replace Justice Anthony Kennedy, is facing pushback from social conservatives who say he’s too moderate to occupy a seat that will determine the balance of the Supreme Court. 

Kavanaugh, a judge on the Court of Appeals for the District of Columbia Circuit, is being considered alongside other top candidates like Amy Coney Barrett and Raymond Kethledge, who also serve as federal appeals court judges.

President TrumpDonald John TrumpHouse Republican threatens to push for Rosenstein impeachment unless he testifies Judge suggests Trump’s tweet about Stormy Daniels was ‘hyperbole’ not defamation Rosenstein faces Trump showdown MORE has said he'll announce his pick on Monday at 9 p.m.

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While Kavanaugh is well respected in Washington’s GOP circles, in part for having worked in the George W. Bush White House before being confirmed to his current position in 2006, a whisper campaign against the 53-year-old judge could undercut his chances for being tapped as Kennedy’s successor, particularly because Trump is wary of sparking a fight with his base and with anti-abortion activists heading into the November midterm elections.

Conservatives take issue with Kavanaugh’s decisions on ObamaCare and abortion-related cases. In a 2011 opinion, he suggested that the Affordable Care Act's (ACA) individual mandate could be made a “tax,” providing a “roadmap” to a 2012 Supreme Court ruling that Republicans believe saved the 2010 health-care law.

“Kavanaugh ruled *in favor* of Obamacare’s individual mandate in Seven-Sky v. Holder,” Avik Roy, a top conservative health-care expert, wrote in a tweet after Kavanaugh’s name was floated as a potential Supreme Court nominee.

More recently, conservatives argue that he didn’t go far enough in his dissent in a 2017 case involving a pregnant immigrant teenager who was taken into federal custody. Kavanaugh wrote that the majority, which ruled to allow the teenager to get an abortion, had “badly erred” and opened the door to “abortion on demand” for unaccompanied immigrant minors.

But he stopped short of a taking a position held by some conservatives, including fellow judge Karen Henderson, who wrote that the immigrant minor did not have the right to an abortion in the first place.

Kavanaugh’s opinions are the focal point of a quiet campaign against him, with a White House official telling ABC News that “the pro-lifers aren't thrilled” with the possibility of Kavanaugh being Trump’s pick to succeed Kennedy.

Kavanaugh’s previous work on the impeachment investigation of then-President Clinton has also raised some eyebrows, in large part because the Trump administration remains under the cloud of special counsel Robert MuellerRobert Swan MuellerSasse: US should applaud choice of Mueller to lead Russia probe MORE’s Russia probe, and some Democrats are indicating impeachment proceedings might be on the horizon if they win the House in November.

When Kavanaugh was in his 30s, he helped write Ken Starr’s report to Congress that outlined a case for impeaching Clinton for lying to his staff and misleading the public. 

“The President misled his Cabinet and his senior aides by denying the relationship to them,” prosecutors wrote in the report. “The Cabinet and senior aides in turn misled the American people and the Congress by conveying the President's denials and professing their belief in the credibility of those denials.”

The concern among conservatives is that the same line of reasoning could be used against Trump by a Democratic-led House.

Kavanaugh subsequently warned against indicting a sitting president, writing in a 2009 article that  it would “cripple” the federal government and “would ill serve the public interest, especially in times of financial or national security crisis.” 

Most social conservatives have lined up behind Barrett, underscoring the divide within the Republican Party over what strategy to deploy as they try to fill Kennedy’s seat.

But Kavanaugh’s prominent supporters reportedly include White House legal counsel Don McGahn, who is overseeing the selection process for replacing Kennedy on the bench.

Miguel Estrada, whose nomination to the Court of Appeals for the District of Columbia Circuit was filibustered by Democrats, is another supporter, who recently defended Kavanaugh by saying “all of these attacks on Brett Kavanaugh are deranged.” 

The anti-Kavanaugh movement’s efforts are also gaining prominence beyond the Beltway.

“The long knives are out from people from all sides of the aisle, folks,” radio host Rush Limbaugh told listeners this week. “Clearly, there is an effort to keep Kavanaugh off the bench, to keep him away from being nominated.”

With Republicans’ 51-seat majority effectively reduced to 50 as GOP Sen. John McCainJohn Sidney McCainCongress must use bipartisan oversight as the gold standard The Hill's Morning Report — Ford, Kavanaugh to testify Thursday as another accuser comes forward Trump hits McCain on ObamaCare vote MORE (Ariz.) battles brain cancer, Kavanaugh could struggle to get confirmed without some help from Senate Democrats.

GOP Sens. Rand PaulRandal (Rand) Howard PaulA Senator Gary Johnson could be good not just for Libertarians, but for the Senate too Conservatives left frustrated as Congress passes big spending bills Senate approves 4B spending bill MORE (Ky.) and Tom CottonThomas (Tom) Bryant CottonGOP senator accuses Dems of ‘character assassination’ on Kavanaugh Sprint/T-Mobile deal must not allow China to threaten US security GOP senators condemn 'vulgar' messages directed at Collins over Kavanaugh MORE (Ark.) are among a bloc of conservatives who have privately expressed concerns to the White House about nominating Kavanaugh, a person familiar with the discussions told The Hill.

When asked about Cotton’s concerns, a spokeswoman for the senator told The Hill that Cotton spoke with Trump earlier this week and gave “frank reviews of the pros and cons of a few finalists, but he explicitly refused to state a preference when asked” who should be nominated.

Paul’s office did not respond to a request for comment.

Four Democratic senators supported Kavanaugh when he was nominated for his current judicial post. Of the four, only one remains in the Senate — Tom CarperThomas (Tom) Richard CarperTrump Jr. to Dem Senator: 'You admitted to hitting your wife so hard it gave her a black eye!' Melania Trump's spokeswoman gets Hatch Act warning for #MAGA tweet EPA to abandon restrictions against chemical linked to climate change MORE (Del.), who voted against Neil Gorsuch’s Supreme Court nomination last year.

The Senate confirmed Kavanaugh in a 57-36 vote in May 2006.

Top Democrats have voiced their opposition to Kavanaugh, and progressive outside groups would likely target wavering Democrats in an effort to block whomever Trump nominates. 

Senate Minority Leader Charles SchumerCharles (Chuck) Ellis SchumerTrump, GOP regain edge in Kavanaugh battle READ: President Trump’s exclusive interview with Hill.TV The Hill's 12:30 Report — Trump slams Sessions in exclusive Hill.TV interview | Kavanaugh accuser wants FBI investigation MORE (D-N.Y.) noted in a tweet this week that Kavanaugh passes the GOP “ ‘litmus test' on overturning Roe v. Wade & striking down protections for ppl w/ pre-ex conditions in the ACA.”

In addition to ObamaCare and abortion rights, Schumer has also raised concerns about Kavanaugh’s dissent in a 2017 case in which he argued that the Federal Communications Commission’s net neutrality rules from the Obama era violated the First Amendment.

“Kavanaugh frequently sides with powerful interests rather than defending the rights of all Americans,” Schumer added, “like when he argued that the FCC’s #netneutrality rule benefiting millions of consumers was unconstitutional.” 

Jordan Fabian contributed.