President Trump (two words I don’t think I’ll ever get used to having to put together) has just nominated federal appeals court judge Brett Kavanaugh to replace the retiring Anthony Kennedy as a justice of the U.S. Supreme Court. According to the Constitution, it will take a simple majority vote in the Senate to confirm this nomination. Will it happen? Probably yes. However, a lot of the country’s political and cultural conflicts over ideology will undoubtedly be laid bare in the process.
Theoretically, the federal court system, including the Supreme Court, was designed to be cordoned off from politics, and to be all about the austere adjudication of cases and interpretation of the nation’s laws. Theoretically. In reality, it’s just as political a branch of government as any other, at least in the way it’s perceived and treated, and that reality is more the case now than ever before, affected by our having two consecutive presidents whom a sizable part of the population (but very different sets of people from one to the other) consider not only bad but illegitimate.
It should be remembered that when Antonin Scalia died in the early spring of 2016, in Obama’s final year, the Republicans in the Senate adamantly refused even to have confirmation hearings for Obama’s nominee to the court, Merrick Garland. Merrick Garland was exactly the kind of justice who, under normal circumstances, would get bipartisan support for confirmation; he is exactly the sort whom a Democratic president nominates when there’s a Republican majority in the Senate, whereas a Democratic president might well appoint a more overtly liberal justice if the Democrats controlled the chamber. But the Republican leaders in the Senate announced on the day Scalia died–before Obama had even opened his mouth about a nominee–that they would not allow confirmation hearings to be held for anybody Obama might nominate, but rather, would leave it to the next president. Thus was Trump able to put Neil Gorsuch on the Court.
As for Brett Kavanaugh, the vote in the Senate will be along nearly tight party lines. Why just nearly? There may be one or two Republicans who vote against him, like Susan Collins of Maine who does not want Roe v. Wade, the 1973 abortion rights decision, overturned, and there may be a few Democrats in the Senate who are up for re-election this year in states that voted for Trump in 2016, who feel pressured to go along with Trump on this one. The way it looks to me, he’ll probably squeak through, but not with votes to spare. There are 51 Republicans and 49 Democrats in the Senate now, and the 51 Republicans include John McCain, who is languishing with brain cancer and is rarely in Washington these days. He would have to be physically present to vote.
If he’s confirmed, the Court will probably shift slightly to the right–slightly, because it’s a Republican he’s replacing, Anthony Kennedy, who, despite having voted with the liberals on some key cases like the gay marriage ruling, voted with the conservatives on plenty of controversial cases as well, like Citizens United (making it harder for Congress to limit the power of money in affecting elections) and Shelby County v. Holder (striking down a portion of the Voting Rights Act). Two issues in particular where he’ll get the most scrutiny are abortion and affirmative action, issues on which Kennedy was not with the ultra-conservatives but Kavanaugh may be.
What Democrats are earnestly hoping is that liberal justice Ruth Bader Ginsburg can stay healthy until there’s a Democratic president, or at least until there’s a Democratic Senate. And as things stand now, retaking the Senate in 2018 is not going to be easy at all for the Democrats.
Tonight (Tuesday, July 10) is opening night of my annual five-week summer American Government class at City Tech. In that class, one of the developing stories we’ll be following closely is the start of confirmation hearings for Kavanaugh in the Senate Judiciary Committee. For those who were in my classes in past semesters, please remember that you’re invited to join in the fun on the Discussion Board.
Article at Politico, July 10, 2018 (and if you’re logged in on a computer, you should see links to many other relevant articles in the news feed at the right side of the page)