Brett Kavanaugh’s Supreme Court confirmation will set off a major political battle – Donald Trump’s America
By Sandeep Gopalan
United States President Donald Trump has nominated Brett Kavanaugh to fill the vacancy on the Supreme Court created by the retirement of Justice Anthony Kennedy.
Judge Kavanaugh, currently on the DC Circuit Court of Appeals, will take his seat on the nine-judge apex court if he is confirmed by the Senate.
Given the narrow Republican majority in the Senate, Judge Kavanaugh’s confirmation is likely to set off a major political battle.
Currently, the 100-seat Senate is controlled by the Republican Party, with 51 seats, but Democrats are likely to produce immense pressure to sway Republican senators to vote against Judge Kavanaugh.
Republican John McCain is ill with brain cancer but may show up to vote if it is very tight — as he did to ensure the Senate rejected a measure by the Trump administration to repeal Obamacare.
On the other side, Republicans will pressure Democrats in Trump-supporting states and who are in electoral contests during the mid-term elections to break from the party and vote for confirmation.
How are judges appointed?
The Supreme Court is established under the constitution and is the highest court in the land.
Judges are appointed by the president but need to be confirmed by the Senate. There is no term limit, and judges are appointed for life.
Following Mr Trump’s nomination, Judge Kavanaugh’s candidacy moves to the Senate Judiciary Committee, which then holds hearings. The nominee’s record receives extensive scrutiny, with witnesses making their case for and against him.
In recent years, articles and even emails written by the nominee have been parsed word-for-word to determine how he or she might rule on potential cases. The nominee is also subjected to questioning by senators who usually present hypothetical facts about prospective litigation and ask how the person might vote.
The confirmation process has been extremely polarising in the past — perhaps none more so than that of Robert Bork and Clarence Thomas.
Judge Bork’s nomination failed because of concerns about extremely conservative ideology whereas Judge Thomas was opposed because of the Anita Hill accusations about sexual harassment.
He was eventually confirmed but he described his experience as a “high tech lynching for uppity blacks who deign to think for themselves”.
The 2016 movie Confirmation provides insight into the drama surrounding the process of appointment.
If the Senate Judiciary Committee votes to approve the nomination, the candidate is then processed to the full Senate with the recommendation — confirm or deny.
The Senate then debates the nomination, and by a majority vote (51 votes), it can confirm the nomination. The justice then takes oath and assumes his seat on the SC.
US Supreme Court nominee judge Brett Kavanaugh at the announcement at the White House. (Reuters: Leah Mills)
Why are appointments so important?
The Supreme Court is often called upon to resolve highly contentious political and constitutional questions.
Aside from the legal matters where it is expected to be the final word, its importance has been enhanced by its as arbiter in the culture wars — national divisions about race, religion, gender and sexual equality, immigration, and the death penalty.
Despite the country being deeply divided on these issues, the nine judges have been called on to find a solution — often just one judge resolving the tie.
Justice Kennedy played that role in recent years. Hence one judge has the unparalleled power to make decisions of vast significance that go beyond technical legal issues.
Indicating that importance, Mr Trump called it “one of the most profound responsibilities of a president” to appoint a SC justice.
He said “other than matters of war and peace this is the most important decision a president will make”, because of the institution’s role in protecting the “crown jewel of our republic, the constitution”.
What are the implications of Kavanaugh’s nomination?
Brett Kavanaugh’s factbox
- Age: 53 (born February 12, 1965 in Washington, DC)
- Education: BA, Yale University 1987; JD, Yale Law School 1990
- Since 2006: Judge in US Court of Appeals for District of Columbia Circuit
- 2003-06: Staff secretary to president George W Bush
- 2001-03: White House counsel’s office
- 1997-98, 1999-2001: Partner at Kirkland and Ellis law firm
- 1994-97: Associate counsel at Office of Independent Counsel Kenneth Starr
- 1993-94: Law clerk, Supreme Court Justice Anthony Kennedy
- 1992-93: Office of Solicitor General
Judge Kavanaugh is a graduate of Yale College and Yale Law School and has excellent conservative credentials.
Mr Trump described his nominee as “one of the finest and sharpest legal minds of our time” and as a “judge’s judge”.
Judge Kavanaugh clerked for Justice Kennedy — just like Justice Neil Gorsuch.
His record of public service includes a stint in the George W Bush administration and teaching law at Harvard Law School.
Judge Kavanaugh’s nomination is heavily opposed and there have been protests even before his nomination.
Democrats in particular are extremely concerned that this appointment would severely erode abortion rights.
They worry that Roe v Wade — the case that established these rights — will be overturned.
And the next month is likely to witness heightened protests and campaigns to protect abortion rights.
Despite the rhetoric, abortion rights are unlikely to be removed. Roe v Wade is unlikely to be overturned. And that is not even the most important case on abortion rights.
The critical case is Planned Parenthood v Casey, where Justice Kennedy was part of the majority opinion alongside justices O’Connor and Souter.
Critically, in that case, all three conservative justices did not overrule Roe. The majority opinion said, considering “principles of institutional integrity, and the rule of stare decisis, we … [conclude] the essential holding of Roe v. Wade should be retained and once again reaffirmed.”
Something similar will probably eventuate if abortion is litigated again. The Casey court did impose some restrictions on abortion rights and Democrats worry that overruling Roe will hurt women.
Even if Roe is overruled — unlikely given public opposition — abortion will not become impossible. It will become an issue for the states and many states will legislate provisions enshrining it as a legal right.
Therefore, Judge Kavanaugh’s nomination must be examined in the light of his record as a judge to determine if he is fit for confirmation. Overblown rhetoric about Roe will not aid that process.
Dr Sandeep Gopalan is the pro vice-chancellor for academic innovation at Deakin University and a professor of law.