Friday, July 13, 2018

Kavanaugh’s Supreme Court Nomination Serves as Perfect Case Study of Election Year Politics

by JAN PYTALSKI, 100 Days in Appalachia

Late Monday night, President Trump introduced his nominee for the new Supreme Court Justice, Brett Kavanaugh, a 53-year-old United States Circuit Judge of the United States Court of Appeals for the District of Columbia Circuit. In the past, he served as the lawyer at the George W. Bush White House and was part of the 1998 Bill Clinton investigation lead by the independent counsel Kenneth Starr.
Kavanaugh’s name came from the list of 25 candidates for the Supreme Court bench that Trump first made public during his presidential campaign. The list bears a seal of approval from the The Federalist Society for Law and Public Policy Studies, a conservative organization “of 60,000 lawyers, law students, scholars, and other individuals who believe and trust that individual citizens can make the best choices for themselves and society”
Kavanaugh, Trump’s second appointment to the court to date, is three years senior to Trump’s first nominee for the Supreme Court Justice, Neil Gorsuch. Together they would represent a solid conservative block of younger Justices that might influence and sway the bench for decades to come. Because of this, the selection comes packed with controversy and faces criticism from both sides of the aisle.
Kavanaugh has a track record of decisions that tend to favor a strong presidency and support staple conservative principles, like gun ownership. He openly opposed Consumer Financial Protections Bureau on the basis of the separation of powers violation, and he voted against EPA regulations during Obama’s administration, citing government overreach.
Although not free from the Republican criticism, Democrats’ stronger fears lie in his potential role as the nail in the Roe v. Wade coffin.
Amy Davidson Sorkin wrote for The New Yorker that:
“[H]e embodies what is likely the near future of reproductive-rights jurisprudence: the stretching into meaninglessness of the standard, laid out in the Supreme Court decisions following Roe v. Wade, that the government should not put an “undue burden” on a woman when she seeks to exercise her right to end an early pregnancy. (The next-near future may simply be the overturning of Roe.)”
Kavanaugh might see some wiggle room when it comes to interpreting what “undue burden” means and how it manifests.
Meanwhile, conservatives may not see him as tough enough. For example, while Kavanaugh expressed a belief in the past that the President has the right to refuse to enforce the Affordable Care Act, he also claimed that it was within the Congress’s constitutional power to impose the ACA’s individual mandate since he perceived it as a tax and Congress is mandated to impose taxes across the state lines.
That said, support for the nominee falls largely along the party lines. Republicans have praised Kavanaugh’s resume and dedication to the “letter of the law” and its strict reading. Here are some Appalachian Senators praising the nominee:
Sen. Richard Burr (NC): “In nominating Brett Kavanaugh to the Supreme Court, President Trump has put forth a highly qualified and respected candidate committed to the rule of law. Judge Kavanaugh’s credentials are impeccable[…]”
Sen. Lindsey Graham (SC): “Brett #Kavanaugh will be an outstanding Justice on the Supreme Court. I also want to congratulate President @realDonaldTrump on this great choice[…]”
Sen. Johnny Isakson (GA): “Judge Kavanaugh is a talented & experienced jurist, and he shares a strong commitment to the Constitution & the rule of law. I look forward to ensuring that this highly qualified candidate is voted on by the Senate in time for the Court’s next session.”
The most prominent Republican Senator, Kentucky’s Mitch McConnell, had this to say about the Supreme Court hopeful: “Judge Kavanaugh understands that, in the United States of America, judges are not unelected super-legislators whom we select for their personal views or policy preferences. A judge’s duty is to interpret the plain meaning of our laws and our Constitution according to how they are written[...]”
McConnell’s comment might strike one as cynical since he was the one to refuse to grant Merrick Garland —Obama’s nominee to replace the late Justice Antonin Scalia — even a hearing, pointing to an election year as a less than perfect moment to appoint a new Supreme Court judge.
As 2018 is an election year, McConnell’s pressure to push the confirmation process forward at the breakneck pace seems to be informed by the slim majority margin the GOP still holds in the Senate. If the vote were to happen after the November midterm elections, Republicans risk similar gridlock they have created for the Democrats in 2016.
Democrats present a fairly unified front in opposing the candidate, focusing primarily on portraying Kavanaugh as danger to the Roe v. Wade decision.
His nomination is a perfect case study of an election year politics. West Virginia’s Sen. Joe Manchin treads lightly when speaking about the nominee. In a press release he stated that “As the Senator from West Virginia, I have a constitutional obligation to advise and consent on a nominee to fill Supreme Court [...] Just as I did when Merrick Garland and Neil Gorsuch were nominated, I will evaluate Judge Kavanaugh’s record, legal qualifications, judicial philosophy [...] his views on healthcare [...] I believe the Senate should hold committee hearings; Senators should meet with him, we should debate his qualifications on the Senate floor and cast whatever vote we believe he deserves.”

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