Article by Eric Black:
As you have likely heard by now, President Donald Trump nominated Judge Brett Kavanaugh of the D.C. Circuit Court of Appeals to fill the upcoming vacancy on the U.S. Supreme Court to replace the retiring Justice Anthony Kennedy.
The nomination of any new Supreme Court justice is a big development, and, assuming Kavanaugh is confirmed (and, at the moment, I would say that is a reasonably safe assumption), this will be big. Kavanaugh is just 53 and could serve for decades. He solidifies the high court’s conservative wing (replacing the conservative, but not on everything, Kennedy).
The two oldest remaining justices are liberals, Ruth Bader Ginsburg, age 85, and Stephen Breyer, 79. Kavanaugh will be the second youngest (the other Trump appointee, Neil Gorsuch is just 50). Such demographic matters as life expectancy are not exactly destiny. But they are important, and recent presidents have figured out that appointing a relatively young justice to a lifetime gig is a powerful thing.
At the public announcement last night, Trump was about as coherent and rational-seeming as you have ever seen him, bordering on gracious and almost even dignified. Kavanaugh came across charming and appropriate, with his wife and two young daughters at his side.
I’ll save any further thoughts of my own for now and pass along reactions from a couple of local experts and some of those who delivered instant left- and right-leaning analysis on TV:
Hennepin County District Judge Kevin Burke wrote his reaction to me, thus:
“No one should be so naive as to expect that President Trump might have nominated someone viewed as a centrist (not so liberal to scare Republicans but not so conservative as to freak out Democrats). I sincerely hope that I am wrong but this nomination after the Senator McConnell steal likely dooms the thought that the United States Supreme Court might be viewed as something other than a partisan political court.
“When he ran for governor, Arne Carlson pushed the idea that there should be ‘merit selection’ of judges. While I think he overstated the problem then, there is no room for doubt today. The appointment of appellate judges in the United States is a crazily political process that ill serves the nation.”
You probably know what Burke meant by the “McConnell steal,” but, just in case: Burke refers to Senate Majority Leader Mitch McConnell’s success in 2016 at refusing to even hold hearings, let alone allow a confirmation vote, on President Barack Obama’s nomination of Judge Merrick Garland to fill the vacancy created by the death of Justice Antonin Scalia, which preserved the vacancy to be filled by Trump.
University of Minnesota Law School Professor Heidi Kitrosser, who teaches about matters constitutional, including Supreme Court appointments, emailed me thus:
“As would have been the case with any of the four potential nominees, Judge Kavanaugh will, if confirmed, almost certainly move the Court further to the right than it was already leaning. Make no mistake about it, Justice Kennedy himself was quite conservative. But he did act as a swing vote in some important areas, including abortion, gay rights, and affirmative action. So on those and likely more fronts, the Court will become more reliably conservative if Judge Kavanaugh becomes Justice Kavanaugh.
“As for specific areas, the most talked-about one thus far has been abortion. On that front, Roe v. Wade already has been chipped away at considerably over the years. With a Justice Kavanaugh (again, assuming that he is confirmed), there may well now be a 5-4 majority to overturn Roe outright. Alternatively, the Court may take the less dramatic road of chipping away at Roe yet more vigorously, even if they do not overrule it outright.
“Another area that comes to mind is voting rights. Justice Kennedy was a pretty reliable vote for conservatives when it came to issues such as voter ID and the Voting Rights Act. He had, however, indicated that he might be open to persuasion on the topic of partisan gerrymandering by anti-gerrymandering advocates. With Kennedy gone and a Justice Kavanaugh in place, gerrymandering opponents likely have lost their shot at a Supreme Court victory for the foreseeable future.
“Judge Kavanaugh should also prove quite friendly to litigants who challenge any number of health and safety regulations. While on the DC Circuit, Kavanaugh cast a skeptical eye on agencies’ power to create ‘major’ regulations, including clean air regulations, without very clear instructions from Congress.
“One more thought, based on some quick and dirty follow-up research: There’s good reason to think — based on his opinions and his academic writings — that Kavanaugh will be a very reliable vote for strong presidential powers on a number of fronts, including presidential immunity from prosecution and very firm presidential control over executive branch subordinates. This might be the aspect of Kavanaugh that Donald Trump finds most attractive.”
The president’s presentation of Judge Kavanaugh happened to occur during the hour that features Rachel Maddow on MSNBC and Sean Hannity on Fox. So a bit of left-right reaction:
On Maddow, Sen. Corey Booker argued that Trump’s nomination of Kavanaugh was self-serving because Kavanaugh has argued that any attempt to indict a sitting president would be a disaster, and he urged Congress to pass a law assuring that no president could be prosecuted unless and until he had been impeached by the U.S. House and convicted and removed by the U.S. Senate.
Nancy Northrup of the Center for Reproductive Rights said that Kavanaugh did not have a clear record indicating how he might rule on abortion rights, but, she said, Donald Trump has publicly stated that anyone he would nominate to the Supreme Court would be prepared to overturn Roe v. Wade, so she assumed Kavanaugh would provide the necessary fifth vote to overturn Roe.
Over on Fox, you’ll be surprised to hear, Hannity predicted that liberals would mount “a full-fledged effort to ‘Bork’ Judge Kavanaugh.” (That’s a reference to the belief on the right that former Judge Robert Bork was smeared and otherwise treated unfairly when he was nominated to the Supreme Court in 1987 by Ronald Reagan. The very conservative Bork was not confirmed.)
“It’s already in full swing,” Hannity said, of the Borking of Kavanaugh, because “most Democrats will never accept that they lost the election and that President Trump is appointing somebody who believes in fidelity to the Constitution, who believes in separation of powers, who will interpret U.S. law based on the clear and written intent of our Founders. And a clear and written law as written by a separate branch of government – in other words, the legislative branch.”
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