A Kavanaugh confirmation would likely pave way for a more conservative Supreme Court
The imminent confirmation of Supreme Court nominee Brett Kavanaugh will likely mean the dawn of a conservative high court for decades to come.
The U.S. Senate is set to hold a final vote Saturday to confirm Kavanaugh as the next Supreme Court justice. While most Republicans and Democrats differ in their views on whether President Trump’s pick should be confirmed, there’s a general bipartisan agreement that the nominee will swing the Supreme Court toward the right.
Kavanaugh will replace retired Justice Anthony Kennedy who, while being a Republican, acted as a swing vote and a gatekeeper of a more moderate high court and often sided with his liberal-leaning colleagues.
The presumptive justice’s judicial record on a federal appeals court indicates he’s likely to align with the four other conservative justices, raising questions about what that will mean on issues such as federal regulatory power, guns, abortion, religious freedom and immigration.
In a 2015 dissent Kavanaugh argued that ObamaCare’s mandate for contraception coverage violated the rights of religious organizations. Last year, he also dissented from a decision that allowed an illegal teenage immigrant to have an abortion, according to a summary of his rulings by Politico.
Kavanaugh opposed granting special visas for foreign workers from Brazil when American workers could do the same jobs. He also argued that a union election was invalid because illegal immigrants participated, and therefore “tainted” the result.
On federal regulatory power, Kavanaugh indicated he may not be on board with the so-called “Chevron doctrine,” which claims courts should defer to federal agencies’ regulatory decisions when such agencies are interpreting ambiguous statutes. That would give more power to the state and, in particular, the executive branch.
On the environment, Kavanaugh leaned toward curbing the power of the federal government to enact environmental rules. In a 2012 decision, Kavanaugh rejected the U.S. Environmental Protection Agency’s efforts to reduce air pollution across state lines. He also claimed that the agency lacks authority and power to enact some of its policies.
The rulings and opinions made Kavanaugh a popular judge among conservatives, but also attracted a number of detractors, with most liberal activist groups unequivocally coming out against his confirmation, even before the allegations of sexual misconduct, for which the FBI found “no corroboration.”
After it appeared that Kavanaugh will be confirmed, Senate Minority Leader Chuck Schumer, D-N.Y., said he opposes the nomination because Kavanaugh was evasive in his answers on key topics during his confirmation hearings. Schumer said Kavanaugh’s views were “deeply at odds with the progress America has made in the last century of jurisprudence and at odds with what most Americans believe.”
Associate Supreme Court Justice Elena Kagan also took an apparent swipe at Kavanaugh, warning Friday that the high court may lose legitimacy if there’s no justice who acts like a swing vote on issues, the Hill reported.
She praised Justice Sandra Day O’Connor and Justice Anthony Kennedy for being the jurists “who found the center or people [you] couldn’t predict in that sort of way.”
“It’s not so clear, that I think going forward, that sort of middle position — it’s not so clear whether we’ll have it,” Kagan said at Princeton University just hours after it appeared that Senate Republicans secured enough votes to confirm Kavanaugh’s nomination Saturday.
“All of us need to be aware of that — every single one of us — and to realize how precious the court’s legitimacy is. It’s an incredibly important thing for the court to guard is this reputation of being impartial, being neutral and not being simply an extension of a terribly polarizing process.”
“All of us need to be aware of that — every single one of us — and to realize how precious the court’s legitimacy is,” Kagan added. “It’s an incredibly important thing for the court to guard is this reputation of being impartial, being neutral and not being simply an extension of a terribly polarizing process.”
Some Democrats also say Kavanaugh will be more inclined to rule with other conservatives following the contentious hearing last month on the allegations raised by Dr. Christine Blasey Ford, where Kavanaugh lashed out against Democrats for turning his confirmation into a “calculated and orchestrated political hit.”
He called the proceedings a “national disgrace” and said the opposition from the left was based on “revenge on behalf of the Clintons.”
He has since backtracked some of the rhetoric, penning a Wall Street Journal op-ed, in which he reiterated that he will maintain his independence.
“Going forward, you can count on me to be the same kind of judge and person I have been for my entire 28-year legal career: hardworking, even-keeled, open-minded, independent and dedicated to the Constitution and the public good,” he wrote.
“Going forward, you can count on me to be the same kind of judge and person I have been for my entire 28-year legal career: hardworking, even-keeled, open-minded, independent and dedicated to the Constitution and the public good.”
Kavanaugh’s words may have struck a chord with U.S. Sen. Susan Collins, R-Maine, who gave a blistering speech Friday afternoon, explaining her reasoning behind voting for Kavanaugh and ultimately deciding to support his confirmation — and suggesting that speculation on how he will rule was overblown.
“That Judge Kavanaugh is more of a centrist than some of his critics maintain is reflected in the fact that he and Chief Judge Merrick Garland voted the same way in 93 percent of the cases that they heard together,” Collins said, referring to the judge whom former President Barack Obama had nominated to the court.
Collins then made the case that Kavanaugh is within the mainstream legal opinion and far from the bogeyman some activists and Democratic opponents painted him with “over-the-top rhetoric.” The opposition to the nomination, in her view, has little to do with Kavanaugh’s actual record — as Democrats announced their opposition even before his name was revealed.