Donald Trump has nominated his second Supreme Court justice. What does that mean for us?
by Hillary Bosch
While engaged in an argument with a friend of mine over whether or not to vote for Donald Trump in 2015, she made a statement that shook my perception of the election. She said, “I don’t care who he mocks, bullies, or curses. I’m voting for him because he’ll nominate conservative judges for the Supreme Court.” This friend of mine is a single-issue voter, so she saw the presidency (and the judiciary) as a means to attain her goal; all other information was accessory. In this article I attempt to be unbiased and multifaceted in an effort to present potential-Justice Kavanaugh’s history prior to his judicial hearings (which p.s. are a hot mess).
Last year Trump’s first supreme court nominee, Neil Gorsuch, was approved by Congress to take Scalia’s spot on the bench. This was a massive victory for the Trump presidency and conservatives everywhere who look to judicial activism to further their policy preferences. For those who study judicial politics, this appointment was not a blow to liberals but simply adherence to the status quo; a highly conservative justice replaced by another.
However, when Justice Anthony Kennedy retired from the bench this past July, it made waves. Justice Kennedy, a moderate conservative, was often seen as a “swing vote” in the middle of the court. Since his appointment by then-President Ronald Reagan in 1987, Justice Kennedy has maintained a conservative philosophy, yet has diverged from the standard conservative platform on multiple occasions, most notably on abortion rights (Planned Parenthood v. Casey) and gay rights (Obergefell v. Hodges). As party polarization increases around the country, Justice Kennedy’s retirement is symbolic of a loss of bipartisanship and compromise; fighting for what’s right even if it’s against the president who appointed you. Good luck following that, Kavanaugh.
Ah yes, so Brett Kavanaugh. You’ve probably been hearing the name but don’t know much about him which is good: judges strive to be independent of party allegiance, though it eventually shows in their record. Though I’m immediately drawn to be suspicious of Kavanaugh (because, you know, Trump) he has a stellar academic reputation. Since becoming an appellate court judge in 2006, Kavanaugh has earned the highest possible rating from the American Bar Association. Prior to his time in the judiciary, he was the White House Staff Secretary of former-President George W. Bush from 2003-2006 and is a graduate of Yale Law School.
Now in terms of his legal record: this is what we know about his jurisprudential philosophy through his case opinions. He is a strong advocate of judicial restraint, which means he thinks the court should be hesitant to act on major policy issues and instead defer to other branches, such as Congress or local government. This is a valid philosophy and, arguably, what the founders intended; the practice of abiding by the the founders’ initial intentions and written law is called “originalism,” which he also supports.
Abortion: he’s not a fan, but he’s also not unreasonable and resepects Roe v. Wade as the current law of the land. “Current” being the operative word.
Presidential Power & Trump: During his hearing, he listed Youngstown Sheet & Tube Co. v. Sawyer in his top 4 favorite Supreme Court cases of all time. What’s notable about Youngstown is that it limited the powers of the executive to meddle (in this case, taking private property to stop a strike). During his hearing, Kavanaugh refused to comment on constitutional questions regarding Trump and the Mueller probe, but his mention of Youngstown indicates he’s not willing to roll over for Trump’s every whim. But… time will tell. He was chosen by the Trump administration from a short list of judges in the midst of a controversy over whether or not Trump can pardon himself.
Environment: Money and jobs come first. Maybe one day they can work with the environment! But today is not that day! According to the New York Times, “Judge Kavanaugh voted in a number of high-profile cases to limit Environmental Protection Agency rules involving issues like climate change and air pollution.” As an advocate for judicial restraint in the face of private corporations, he argues that the EPA has gone beyond its allocated authority. But he also recognizes climate change? But also thinks its not the job of the court to address it? But he has the court address other things? I don’t understand.
Guns: He authored a dissenting opinion that, were it in the majority, would’ve struck down Washington D.C.’s ban on semi-automatic weapons. He stands behind this opinion still, and has made no comment on 3D printed plastic guns, according to CBS News.
In his hearings, he’s been accused of perjury, racial profiling, working to undermine abortion laws and civil rights, and more. According to NPR, “at least 227 demonstrators were arrested between the start of the nomination hearings on Tuesday and the end of testimony on Friday.” Many of the protesters come from feminist groups, such as those involved in the Women’s March and Planned Parenthood. Senator Cory Booker also released “committee confidential” documents from Kavanaugh’s time as a Bush staffer in an effort to expose his views on affirmative action and other major issues.
So is Brett Kavanaugh qualified to be on the Supreme Court? Yes. Should he be there? Depends on who you talk to. His past is a good way to predict how he will behave in the future, but the Supreme Court is different. It demands a greater level of independence or, to reference Comey’s book, a “higher loyalty” to the values of truth and justice. The Supreme Court is intended to be free from politics, free from partisanship, and honestly, free from empathy. It’s sole mission is to interpret the letter of the law and reconcile it with our modern society. Can Kavanaugh fulfill this mission? Only he knows.