On Monday night, President Trump nominated Judge Brett Kavanaugh to replace retiring Justice Kennedy on the United States Supreme Court. An extreme conservative, Kavanaugh would rank nearly the same as Justice Clarence Thomas on the ideological spectrum. Justice Kennedy announced two weeks ago that he will be retiring from the Supreme Court, allowing President Trump to have a second appointment.
Brett Kavanaugh was picked from a list of 25 jurists who were handpicked by the Federalist Society, an organization that mentors young conservative lawyers and grooms the next generation of judicial leaders to be sympathetic to their values, from corporate interests to ending legal abortion.
Kavanaugh spent the formative years of his career as a right-wing operative. In fact, after serving in President George W. Bush’s White House he was considered such a partisan that it took 3 years for his nomination to the DC Circuit Court of Appeals to be approved by the Senate.
In 2009, Kavanaugh argued that a president should not be subject to a criminal investigation. This point makes him unique among the candidates Trump could have chosen, and worries those who want the investigation into Russian interference in the American democracy to move forward unhindered. As the Mueller investigation, as well as the New York state investigation, closes in around him, the Supreme Court will be required to weigh in on a number of important, never-before answered constitutional questions regarding the president’s culpability: Can the President fire the special counsel? Can a sitting U.S. President be called to testify in a criminal case? Does the President have the legal authority to pardon himself?
Kavanaugh’s nomination means that he passed President Trump’s litmus test of being a Justice who would overturn Roe v. Wade, criminalizing abortion in over half the country. In the recent case of Garza v. Hargan, Kavanaugh wanted to make it impossible for a 17-year-old pregnant migrant to access an abortion. Even though she had already jumped through all the state-required hoops, Kavanaugh would have forced her to wait weeks longer for a resolution, which would have pushed her into the second trimester. In another dissent, Kavanaugh argued that employers, especially religiously affiliated ones, have the right to deny birth control insurance coverage to their employees.
A massive progressive movement has launched to demand that Senators don’t vote on any Supreme Court nominee until after the November elections, a standard that Senate Majority Leader Mitch McConnell enforced in 2016 as he held up President Obama’s nomination of Merrick Garland following the death of Justice Scalia.
But Democrats have begun to shift the fight to blocking Kavanaugh’s nomination, assuming that they will not be able to stop a vote. That will require that all Democratic Senators and one Republican Senator oppose his confirmation. Advocates are focusing their efforts on five Senators: Heidi Heitkamp (D-ND), Joe Manchin (D-WV), Joe Donnelly (D-IN), Susan Collins (R-ME), and Lisa Murkowski (R-AK). Additionally, because of Kavanaugh’s record on government surveillance, some organizations are targeting Rand Paul (R-KY).
In the early days of the Trump presidency, Justice Neil Gorsuch’s nomination was forced through with only 55 votes after Senate Republicans abandoned 200 years of tradition and employed the “nuclear option,” changing the rule requiring a 60-vote threshold for cloture.
The 60 vote threshold was put in place to ensure bi-partisan cooperation when it came to confirming a lifetime appointment to the highest Court in the land. Observers of the Senate and the Court now feel that without a 60-vote threshold, the Court will become even more polarized and politicized.
Media Resources: 538 07/09/18, Feminist Newswire 06/07/2017, 7/6/18; SFGate 07/10/18, The Hill 07/09/18, Reuters 07/03/18; Feminist Majority 7/10/18