Preparing for the Brett Kavanaugh Confirmation Hearing

Supreme CourtJustice Anthony Kennedy shocked the legal world in late June by announcing his retirement from the Supreme Court.  The long-serving Reagan appointee rose to national prominence as a crucial swing vote between the entrenched conservative and liberal blocs, and his unexpected retirement allowed President Donald Trump to appoint Brett Kavanaugh as a replacement.  Trump’s second Justice appointee in as many years faces a divided Senate confirmation process which will further press current political tensions.

Justice Kennedy’s Lasting Legacy

Anthony Kennedy was appointed by President Ronald Reagan in 1987, but he has not been as staunchly conservative a jurist as would be expected from a socially conservative Republican president in today’s political climate.   Legal and political commentators on both sides of the political spectrum have debated whether Kennedy can fairly be described as a Libertarian thinker friendly to both economic interests and social justice / individual liberty, and this approach often made him the most difficult Justice to predict which placed him in a position of great significance.

Justice Kennedy will retire a key figure for conservative jurisprudence by advancing Super PAC and corporate economic interests with his majority opinion in Citizens United v FEC and protecting gun ownership rights by joining the majority in DC v Heller.  Kennedy earned praise from liberal legal scholars by joining the majority in upholding abortion rights in Planned Parenthood v Casey, and most recently becoming the key figure in cementing LGBT marriage rights by penning the famous United States v Windsor and Obergefell v Hodges decisions later in his tenure.

Although he leaned conservative on many issues, Justice Kennedy served as the Court’s swing vote during a time of crucial cases that challenged existing structures defining corporate interests, LGBT rights, abortion, and death penalty jurisprudence.  There is not a current Justice whose vote is as difficult to predict, and Kennedy will retire as one of the most influential jurists of modern times.

Getting to Know Brett Kavanaugh

Judge Kavanaugh was appointed to the DC Circuit Court of Appeals in 2003 by President George W. Bush and has established himself as a conservative jurist with a tendency to defer to Congress but not administrative agencies.   Kavanaugh wrote a notable dissent when the DC Circuit upheld the constitutionality of the Affordable Care Act in 2011, and again dissented when his colleagues refused to hear a case where Catholic organizations sought relief from the ACA’s contraceptive mandate in 2015.  Additionally, although he has publicly expressed support for climate change initiatives, Kavanaugh has ruled against the EPA more than once because of his belief that Congress should take the lead on environmental protection rather than the agency itself.

Consistent with a rising number of conservative jurists, Kavanaugh has established a record on abortion jurisprudence that, although deferential to precedent of Roe v Wade and Planned Parenthood v Casey, is meticulous in limiting those two cases.  Kavanaugh will certainly not vote in favor of a ruling that expands abortion rights, and there is a real possibility that he and Justice Gorsuch tip the scales of the court in such a way that the federal government’s involvement in abortion legislation that Roe introduced could come to an end should the right case come along.

Democrats in the Senate are likely to zero in on concerns about Kavanaugh’s record on the EPA, abortion, and other issues such as executive privilege and immunity as they campaign heavily against his confirmation.  If the strength of Democrat-led opposition is enough to hold up the process long enough until the upcoming November elections, the Supreme Court could find itself without a replacement for an extended period.

What to Expect in the Kavanaugh Confirmation Hearings

President Trump formally submitted Kavanaugh’s nomination to the Senate on July 10th, where it currently is being considered by the Senate Judiciary Committee.   The Supreme Court Justice confirmation will begin with the committee reviewing the nominee’s record and holding public confirmation hearings before voting whether the nomination should proceed to the Senate with a positive, negative, or neutral report.  Once on the Senate floor, a simple majority vote is required for final confirmation.  After the political tension surrounding Trump’s first appointee, Justice Gorsuch, threatened to derail the confirmation process, Senate Republicans voted to eliminate the possibility of a filibuster holding up confirmation votes, meaning that the minority party has very little recourse to stopping a Supreme Court nomination.

In Kavanaugh’s case, many (but not all) Senate Democrats have already pledged opposition to the nomination; however, their position is unlikely to have a meaningful effect.  Republicans can press the Kavanaugh nomination to the Senate floor without much delay and hold a 51 – 49 majority sufficient to finalize the confirmation before the upcoming November elections which could change the landscape of the Senate.  The only real concerns for Kavanaugh’s confirmation are potential holdouts among the Republican majority, including Senator Rand Paul who has publicly stated he is undecided on the matter.  Kavanaugh is not as socially conservative as some Republicans had hoped for, but votes lost among the GOP because of this may be won back by Democrats who appreciate a more moderate Justice than some of Trump’s publicly listed alternatives.

It is more than likely that Kavanaugh is seated before the Court is re-opened for business in October.  His appointment to the Court will give Conservatives a more entrenched 5 – 4 majority than Kennedy provided for the next several years.

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