Americas: United States
Special Report: Trump selects a new Supreme Court Justice
Senior Associate Justice Anthony Kennedy announced on June 27, 2018, his intent to retire from the United States Supreme Court effective July 31, 2018. In a letter to President Donald J. Trump, he formally provided notification of his intent to retire and expressed his gratitude for serving on the U.S.’s highest court.
Justice Kennedy’s retirement provided President Trump with a unique opportunity to reshape the court for generations with a young conservative jurist being the most likely route to do so. U.S. Senate Majority Leader Mitch McConnell (R-KY) stated that the Senate “will vote to confirm Justice Kennedy's successor this fall.” The ramifications of Justice Kennedy’s retirement was likely to shape the two parties’ approaches to the midterm elections; Democratic Senate candidates up for re-election in red states either could either vote to confirm President Trump’s to attempt to attract Republican voters, but this potentially puts them at odds with more reliable Democratic base voters.
The ramifications of this retirement also extend to established precedent; while campaigning, then-GOP presidential nominee Trump said in the October, 2016 debate that he would pick nominees who would support overturning Roe v. Wade, which would effectively return abortion laws to the states. The reaction from Democrats largely focused on the fact that Majority Leader Mitch McConnell blocked hearings for President Obama’s nominee, Merrick Garland, in 2016.
Senate Minority Leader Chuck Schumer (D-NY) tweeted: “Millions of ppl are just months away from determining the senators who should vote to confirm or reject POTUS’s nominee, & their voices deserve to be heard now, as @SenateMajLdr thought they deserved to be heard then. Anything but that would be the absolute height of hypocrisy.” Other Democratic Senators such as Tammy Duckworth (IL), Dick Durbin (IL), and Dianne Feinstein (CA) echoed Schumer’s sentiments, though Democratic Senators such as Joe Manchin (WV) struck a more conciliatory tone and agreed to meet with whomever President Trump nominated. President Trump said that Justice Kennedy’s replacement would come from a list of 25 potential nominees.
President Trump announced at the White House that Judge Brett Kavanaugh was his choice to succeed Justice Kennedy on July 9th, 2018. Kavanaugh has served as a judge on the United States Court of Appeals for the District of Columbia circuit and was appointed by former President George W. Bush to that position in 2003. Due to controversial accusations of partisanship, he was not confirmed by the Senate until 2006. President Trump described Kavanaugh as “one of the finest and sharpest legal minds in our time.”
Kavanaugh would represent a reliably conservative vote on bench, if confirmed, and his confirmation would secure for Republicans their vaunted goal of a conservative majority on the Supreme Court. He was a member of the conservative Federalist Society and like deceased Justice Antonin Scalia, he has subscribed to textualist judicial ideology, which calls for interpretation of the law where the ordinary meaning of the legal text is all that is evaluated (i.e. factors such as the lawmakers’ intentions or the law’s intended purpose are not considered).
His judicial track record includes curtailing some of former President Barack Obama’s environmental regulations, finding the creation of the Consumer Financial Protection Bureau to be unconstitutional during dissent, and dissenting on circuit court ruling that an undocumented teenager was entitled to an abortion. Most notably, he has argued that a President could refuse to enforce the Affordable Care Act even if the courts find it to be constitutional. During his confirmation hearing to be a circuit judge, he called Roe v. Wade “binding precedent of the Supreme Court”, but that does not necessarily predict how he would rule on the law were he a Supreme Court Justice himself.
In a law review article published in 2009, Kavanaugh wrote that “Congress should consider doing the same, moreover, with respect to criminal investigations and prosecutions of the President. In particular, Congress might consider a law exempting a President—while in office—from criminal prosecution and investigation, including from questioning by criminal prosecutors or defense counsel.” CNN reported that President Trump’s legal team reviewed these writings specifically -- a particularly relevant development, given the President’s campaign was still under FBI investigation at the time of this writing.
The three Democratic Senators who voted for Neil Gorsuch—Joe Manchin (WV), Heidi Heitkamp (ND), Joe Donnelly (IN)—all expressed their willingness to meet with and vet Kavanaugh. More liberal Democratic Senators such as Kamala Harris (CA) and Elizabeth Warren (MA) released statements indicating their vehement opposition to confirming him. Republican Senators generally released statements of praise of President Trump’s choice with Majority Lead Mitch McConnell calling him “an impressive nominee who is extremely well qualified to serve as an Associate Justice of the Supreme Court of the United States.”
Denise Youngblood Coleman, PhD.
President and Editor in Chief
-- July 10, 2018