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President Donald Trump privately indicated to a small group this week that he has settled on a nominee to succeed Justice Anthony Kennedy on the Supreme Court, according to a person with direct knowledge of the matter.
During the July 4 picnic at the White House, Trump suggested to friends and some external advisors that he had already made up his mind about whom he will pick to join the high court, the person said on the condition of anonymity due to the sensitive nature of the ongoing deliberations.
That source, along with another person familiar with the negotiations, said the president gave strong indications that he prefers D.C. Circuit Court of Appeals Judge Brett Kavanaugh. Vice President Mike Pence, meanwhile, would throw his backing behind whoever the president nominates, a source said.
Trump and Pence believe Kavanaugh is considered the safest choice to reel in undecided senators, given his mixed opinions on a wide range of issues, including President Barack Obama’s Affordable Care Act and Roe v. Wade, the sources said.
Still, the sources insisted that Trump could change his mind. While Kavanaugh is the favorite, the other leading contenders are federal judges Raymond Kethledge of the Sixth Circuit Court of Appeals and Judge Amy Coney Barrett of the Seventh Circuit.
Kavanaugh, Kethledge and Barrett met with Trump on July 2 at the White House. Trump plans to announce his choice the night of Monday, July 9.
A White House official told CNBC that the president has yet to lay out his Supreme Court decision to his team and would not confirm or deny which candidate is favored to succeed Kennedy.
A spokeswoman for Pence’s office declined to comment.
Kavanaugh became a prominent name in conservative circles when he worked for George W. Bush’s administration. In 2003, as assistant to the president and staff secretary, he advised Bush on conservative justice nominees.
Bush later nominated him to the D.C. Circuit Court.
Prior to his stint in the Bush White House, Kavanaugh, along with Kethledge, were law clerks for the outgoing Kennedy at different times in their careers. He also served as a fellow in the Office of the Solicitor General, when Kenneth Starr was investigating President Bill Clinton.
Kavanaugh’s record as a judge could hold some appeal to moderate lawmakers if Trump gives him the nod. While he has been a reliable conservative, he shows less appetite for upending the status quo on socially divisive issues.
In 2011, he wrote a dissenting opinion when two judges on the D.C. circuit upheld the Obamacare individual mandate, explaining that it would “usher in a significant expansion of congressional authority with no obvious principled limit.”
When the D.C. Circuit court voted in favor of a teen immigrant’s right to terminate her pregnancy in 2017, Kavanaugh was one of three judges who wrote against the decision allowing her abortion.
Yet, at that time, he did not go as far as to say that U.S. citizens should lose the right to an abortion that was legalized by the 1973 Roe v Wade ruling. Since his dissent, he has not said publicly whether he is for or against that Supreme Court decision.
Kavanaugh has declined to give his opinion on Roe v. Wade, making him a target of anti-abortion groups. They have circulated opposition research around Capitol Hill that ties Kavanaugh to former 9th Circuit Judge Alex Kozinski, who retired after he was accused of sexual harassment.
The research argues that Kavanaugh must have known about Kozinski’s actions as he clerked for him over 30 years ago. They also worked together as clerks for the retiring Kennedy.
For some Senate lawmakers, however, Kavanaugh’s demurral on the abortion law could help him win their votes for confirmation.
Sen. Susan Collins, R-Maine, has said she would not support a Supreme Court nominee who has been hostile toward Roe v. Wade.
Other senators have indicated they, too, could be on the fence if Trump picks someone considered to be an ideologue with zealous opinions on divisive issues.
After meeting with Trump on Thursday about the looming decision, Sen. Heidi Heitkamp, D-N.D., said she encouraged the president to nominate someone who would be a “non-ideological” judge to succeed Kennedy.