Justice Kennedy announced his retirement this summer. He was a moderate “swing” voter. He was appointed by President Reagan in the 1980s and confirmed when Democrats controlled the Senate. He often provided the decisive fifth vote in groundbreaking cases. For example, he was the deciding vote in favor of gay marriage, and wrote the Obergefell majority opinion. In 1992, he rejected the opportunity to overturn Roe v. Wade and the right to an abortion.
President Trump nominated D.C. Circuit Court of Appeals Judge Brett Kavanaugh to fill this vacancy on the nine-member Court. Judge Kavanaugh follows the principle of “originalism” in interpreting the Constitution. Its major champion, Justice Scalia, defined it this way: “The Constitution that I interpret and apply is not living but dead, or as I prefer to call it, enduring. It means today not what current society, much less the Court, thinks it ought to mean, but what it meant when it was adopted.”
Senate confirmation hearings and a vote are expected this fall. Senate Majority Leader Mitch McConnell vowed to put Judge Kavanaugh up for a vote in time for him to join the Court when its next term begins on October 1, 2018.
Judge Kavanaugh is 53 years-old, Catholic, married, and has two young daughters. He coaches them in youth sports. He was born in D.C. and raised in Maryland. He received his college and law degrees from Yale, where he was a Law Review member. His mother was a lawyer and a trial court judge.
He is seen as an “establishment” choice. Whether he is as conservative as Justice Scalia or is more of a moderate like Justice Kennedy remains to be seen. For 12 years, he has served as a Circuit Judge of the United States Court of Appeals for the District of Columbia. Before that, like Justice Gorsuch, he clerked for Justice Kennedy, the man he is nominated to replace.
Judge Kavanaugh was a partner at the prominent law firm Kirkland & Ellis. He is a protégé of Kenneth Starr, and played a lead role in drafting the Starr Report, which urged the impeachment of President Clinton over the Monica Lewinsky scandal. He served on the staff of President George W. Bush. In 2009, he wrote an article for the Minnesota Law Review where he argued that U.S. Presidents should be exempt from “time-consuming and distracting” lawsuits and investigations, which “would ill serve the public interest, especially in times of financial or national security crisis.”
Justin Walker, who clerked for Judge Kavanaugh and Justice Kennedy, wrote an endorsement of Judge Kavanaugh this summer, stating that he “has been a steadfast and fearless supporter of religious liberty for decades.” He further states that “his record of defending religious liberty is unparalleled,” noting that he concluded that the Obama administration’s contraceptive mandate related to Obamacare violated the rights of religious organizations. In another case, he stated, in “a powerful defense of religious liberty,” that courts cannot “second-guess the correctness or the reasonableness” of a party’s “sincere religious beliefs. Legal commentator Ed Whelan, writing for The National Review, notes that Judge Kavanaugh rejected a First Amendment challenge to the prayers at the presidential inauguration and to the inclusion of “so help me God” in the presidential oath. He stated that we “cannot dismiss” the desire of many in America “to publicly ask for God’s blessing on certain government activities and to publicly seek God’s guidance for certain government officials.”
Last year, Judge Kavanaugh was involved in a case involving abortion rights called Azar v. Garza. The dispute was whether a teenager in the U.S. illegally could be released from immigration custody to get an abortion. After a federal judge found she could be released, Judge Kavanaugh wrote a panel decision blocking the abortion for up to 10 more days to give the government time to find her an immigration sponsor. The full appeals court, however, overturned his ruling. In a dissent, he stated that “the Supreme Court has repeatedly said that the Government has permissible interests in favoring fetal life, protecting the best interests of the minor, and not facilitating abortion, so long as the Government does not impose an undue burden on the abortion decision.” His view was approved by the Supreme Court when, early this year, it vacated the ruling he dissented from.
This summer, Sarah Pitlyk, a former clerk for Judge Kavanaugh, endorsed him for the Supreme Court, stating that he has “an impeccable record of constitutional conservatism.” She notes that “on the vital issues of protecting religious liberty and enforcing restrictions on abortion, no Court of Appeals judge in the nation has a stronger, more consistent record than Judge Brett Kavanaugh. On these issues, as on so many others, he has fought for his principles and stood firm against pressure.” She further notes “a long, unbroken line of consistent decisions from Judge Kavanaugh on issues of religion and abortion.” Ms. Pitlyk concludes: Judge Kavanaugh “is a good and decent man who will never waver in the face of pressure from any quarters.”
At least until this November’s midterm elections, Republicans (barely) control the U.S. Senate with 51 votes. Also, new Senate rules allow a simple majority to force a vote on and to approve a Supreme Court nominee. The minority can no longer filibuster them. This is known as the “nuclear option.” So, Judge Kavanaugh is likely to be confirmed. But a lot of controversy surrounds his nomination given our current political environment.
If Judge Kavanaugh is confirmed, he will change the balance of the Court. It will then have a solid and relatively young majority of five conservative, pro-religious freedom Justices. This newly configured Court should protect religious liberty and free speech for at least one more generation.
In his final debate with Secretary Clinton, then-candidate Trump, concerning overturning Roe v. Wade, said it would happen if he was elected and allowed to fill vacancies on the Court. He stated: “If we put another two or perhaps three justices on, that will happen. And that will happen automatically, in my opinion, because I am putting pro-life Justices on the Court.” Many disagree about the fate of Roe, however, believing that Chief Justice Roberts is unlikely to vote to overturn it. He is seen as the new “swing” vote in light of Justice Kennedy’s retirement. Also, President Trump recently said that, following the advice of aides, he “probably won’t” ask possible nominees if they would vote to overturn Roe.
Female pro-abortion Republican Senators Susan Collins of Maine and Lisa Murkowski of Alaska may vote against Judge Kavanaugh if it appears likely he will vote to overturn Roe. Senator Collins recently said that she wants a nominee “who recognizes that it is not appropriate for the Supreme Court to overturn such a landmark decision.” She also said she will vote against any nominee with a “demonstrated hostility” to Roe. (Senator Collins and Senator Murkowski both voted to confirm Justice Gorsuch last year, but the balance of the Court was not at stake then.) Also, Republican Senator John McCain of Arizona has not shown up in the Senate since last year because of his brain cancer treatment. He thus cannot be counted on to be able to cast a vote.
At the same time, however, 10 Democrat senators in “red” states won by President Trump are up for reelection this year. This includes Montana, North Dakota, Indiana, Missouri, and West Virginia. These senators will be under pressure to vote to confirm the nominee to keep their seat and help the Democrats possibly reclaim a Senate majority. Commentators have described this scenario as a “terrible vote” for these senators. This may offset any Republican “defections” and allow Judge Kavanaugh to be confirmed.
Democrat Senator Kamala Harris of California, who is reportedly considering running for president in 2020, said—before President Trump announced his nominee—that anyone nominated by President Trump means “we are looking at the destruction of the Constitution,” and “we cannot relent. We will have to fight until the end.” Similarly, Democrat Senator Dianne Feinstein, also of California, and also before the nominee was announced, said that they “could eviscerate women’s freedoms for generations.”
Therefore, the confirmation process should be a contentious “nail-biter.”
This vacancy also means that in just the first two years of his first term, President Trump has nominated as many Supreme Court Justices (2) as Presidents Clinton, George W. Bush, and Obama each nominated in all eight years of their two-term presidencies. Therefore, no matter what else happens, President Trump will make his mark on the Court. Also, more Court vacancies could occur during his presidency. Justice Ginsburg is 85 and Justice Breyer is 80. They are both liberals.
Elections have consequences.