Jul 24

Jul 24 Kavanaugh's Confirmation Prospects (Part One) By Daniel Tagliarina

With the whirlwind of news surrounding the presidency since President Trump’s strained NATO summit and potentially disastrous Helsinki meeting with Russia’s President Vladimir Putin, it might be easy to forget about Justice Kennedy’s major announcement about his retirement a few weeks ago. Despite much of this, Senate Majority Leader Mitch McConnell has vowed to have Judge Brett Kavanaugh confirmed as the next Supreme Court justice by October 1st.

As Judge Kavanaugh makes his rounds and starts the process of working the Senate before his confirmation hearings, it is worth taking a look at Kavanaugh and the confirmation process.

Background

Kavanaugh has been serving for 12 years on the U.S. Court of Appeals for the D.C. Circuit (serving under Chief Judge Merrick Garland), as did Chief Justice Roberts, Justice Thomas, and Justice Ginsburg before their confirmations. Kavanaugh also attended Yale for his undergraduate and law school degrees, as did Justices Thomas, Alito, and Sotomayor. Kavanaugh is also a member of the Federalist Society, along with Chief Justice Roberts, and Justices Thomas, Alito, and Gorsuch.

Prior to becoming a federal judge, Kavanaugh served as a law clerk for Justice Kennedy (alongside Justice Gorsuch), worked with Ken Starr during the Clinton investigation, worked as a lawyer on behalf of then-candidate George W. Bush during the Florida recount in the 2000 presidential election, and worked in the George W. Bush White House Counsel’s Office before moving to the position of staff secretary, work that included representing the administration during questions over treatment of detainees.

Judicial Orientation

All of this is to say that Kavanaugh is an incredibly well-connected, Republican political insider. This makes his nomination perfectly in line with what we might expect from a President Cruz, President Rubio, or basically any of the other Republican primary candidates from 2016. This does, however, seem out-of-step with Trump’s claims to “drain the swamp,” but not with his previous federal court nominees, including Justice Gorsuch.

In essence, Kavanaugh's pedigree puts him firmly in the mainstream of Supreme Court justices. While his political leanings appear to be to the right of Justice Kennedy, Kavanaugh ticks all of the more “objective qualifications” for most judicial appointees. This just leaves the more “intangible” elements like “judicial philosophy,” “theory of interpretation,” and “judicial temperament.”

These phrases mean something to a small group of lawyers and scholars, but are generally poorly conceptualized and of little meaning for actual confirmation decisions—apart from giving Senators something to say to explain their votes. Kavanaugh’s qualifications and politics mean the confirmation process will inevitably be about far more than him.

While the following list is not exhaustive, I highlight five considerations that will likely be central to the struggles to confirm Kavanaugh as the next Supreme Court justice. I'll discuss the first two here, Senate Majority Leader Mitch McConnell and reproductive rights, and the remaining three in part two, executive privileged, birthright citizenship, and voting rights.

Mitch McConnell

More than probably any other contemporary Congressional official, Mitch McConnell has worked to reshape the institution he has headed since 2015, as well as the federal courts. From the loss of the filibuster for Supreme Court justices; to the ending of the process of Senate “blue slips”—a tradition of allowing home state senators to nix nominations for judges to federal courts in their states if the senators disagree with the nomination; to the unprecedented refusal to even consider President Obama’s nomination of Merrick Garland to replace Justice Scalia; McConnell has been on a mission to remake the federal judiciary.

McConnell he has been blowing through Senate rules and customs to do achieve his goal, reminiscent of the Federalists circa 1800-1801. McConnell’s cavalier attitude towards Senate history and tradition, and his dogged-determination to shift the federal courts far to the right will certainly be in the background, if not the foreground, of the coming confirmation process. This confirmation process is as much about McConnell as it is about Kavanaugh.

Roe v. Wade & Women’s Reproductive Rights

This is the element perhaps most focused on since Kennedy announced his retirement. While still a candidate, Trump promised to appoint Supreme Court justices that would overturn Roe v. Wade, the 1973 Supreme Court ruling that protected women’s access to safe, legal abortions as part of women’s privacy rights. There is no reason to believe he has wavered from this promise, and in fact plenty of reason to believe this nominee is positioned to fulfill this promise.

What this focus misses is that Kennedy was not the ardent supporter of abortion and reproductive rights that he was often given credit for being. Even if Kavanaugh were not Trump’s pick, this would likely be the discussion, and just about every name on Trump’s shortlist of nominees appears to hold similar views. This is not to minimize the threat to reproductive rights that a Justice Kavanaugh would pose—because all signs point to exactly this—but rather to indicate that this conversation is not particular to this nominee.

While a direct overturning of Roe v. Wade is still unlikely (despite adamant politicians, the popular support is not there), what is incredibly likely is the continued process of gradually whittling away at access to abortion, a process that Kennedy helped institute.

Daniel Tagliarina is the Pre-Law Advisor and Assistant Professor of Government and Politics at Utica College.