Donald Trump has nominated a conservative appeals court judge to the U.S. Supreme Court, with his second appointment to the top bench handing him the opportunity to craft a firm and enduring right-leaning majority.
The U.S. President announced his choice of Brett Kavanaugh in the East Room of the White House at 9 p.m. Monday.
“I have often heard that other than matters of war and peace, this is often the most important decision a president will make,” Mr. Trump said. “The Supreme Court is entrusted with the safeguarding of the crown jewel of our republic: the Constitution of the United States.”
Before taking his current post with the District of Columbia Circuit Court in 2006, Judge Kavanaugh worked in George W. Bush’s White House handling judicial appointments and was a key figure in Kenneth Starr’s investigation into Bill Clinton, which led to the then-president’s 1998 impeachment.
Judge Kavanaugh, 53, referenced his Catholic faith and evinced an “originalist” view of the law – holding that the Constitution must be interpreted conservatively.
“A judge must … interpret the law, not make the law. A judge must interpret statutes as written,” he said. “A judge must interpret the Constitution as written, informed by history and tradition and precedent.”
Judge Kavanaugh, if confirmed by the Senate, will give the court’s right wing a five-to-four majority, fulfilling a decades-long goal of social conservatives to take control of the pinnacle of America’s judiciary. The new justice will replace the retiring Anthony Kennedy, a swing-voting judge who sided with both sides of the court’s ideological divide over the years, and for whom Judge Kavanaugh once served as a clerk.
A conservative majority could also have implications for Mr. Trump himself if he gets into a legal fight with Robert Mueller – who is investigating allegations of collusion between Mr. Trump’s campaign team and the Russian government in the 2016 election – over the special counsel’s power to subpoena the President.
How Judge Kavanaugh would approach presidential wrongdoing could prove complicated: During his work for Mr. Starr, he adopted a broad view of what conduct was grounds for impeachment, going after Mr. Clinton for misleading people about an extramarital affair.
Conservative states are expected to promptly start passing anti-abortion and anti-affirmative-action laws to set up court cases that would allow the justices to overturn previous protections.
“It’s going to happen pretty swiftly,” said Amanda Hollis-Brusky, a political scientist at Pomona College in California who has written a book on the conservative legal movement. “There are no longer any roadblocks for the conservative counter-revolution moving into those culture war areas.”
Conservatives justices could shred abortion rights in different ways. One possibility is a straight overturning of Roe v. Wade, the 1973 ruling that legalized abortion, which would allow states to ban the procedure. Another is adopting a narrow interpretation of the 1992 case that prohibited states from imposing “undue burden” on women seeking abortions; such a move would give states the power to make it so onerous for women to receive abortions that they, in practice, cannot get them.
A right-leaning court could also overturn a 2016 affirmative-action ruling that held that universities can count the race of visible-minority applicants in their favour when deciding who to admit. A ruling restricting the use of the death penalty to people aged 18 and up may also be under threat. And university campus fights over controversial speakers and teaching techniques may soon find themselves in front of the court.
One area of law unlikely to be reversed is same-sex marriage. Sara Benesh, a Supreme Court expert at the University of Wisconsin, said the expansion of LGBTQ rights in the U.S. has been widely enough accepted that there is little appetite to overturn the court’s landmark 2015 decision.
Ms. Benesh said the newly conservative court would also probably opt to chip away at Roe v. Wade rather than completely undo it.
“The Supreme Court has accepted more and more limitations on abortion over time as it’s gotten more conservative, so I suspect this will continue,” she said. “But given how entrenched in the culture Roe v. Wade is … it would amaze me if the court voted in a majority to overturn it.”
Senate Republicans, who hold a one-seat majority, will rush to confirm the nominee before midterm elections this fall. Groups on both sides plan to launch advertising and pressure campaigns to push moderate senators to vote against their party lines.
“We believe we can stop a Supreme Court nominee,” said Planned Parenthood’s Dana Singiser, pointing to the organization’s previous success lobbying against congressional efforts to cut its funding. “We have a track record of making sure the voices of the American people are heard in the corridors of power.”
The Globe and Mail, July 9, 2018