Supreme Court Confirmation Armageddon

July 3, 2018

The upcoming and explosive confirmation fight will divide the country even more as the new Supreme Court justice will determine the ideological direction of American jurisprudence and affect the future of the interpretation of the Constitution.

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The recent announcement by Justice Anthony Kennedy that he will retire from the Supreme Court after the court's term which ends in May of this year has sent shocked court observers, Republicans, Democrats and prominent members of the media and internet bloggers. 

On July 9th, President Trump nominated D.C. Court of Appeals Judge Brett Kavanaugh, a conservative legal mind, to fill the Kennedy position on the nation's highest court.  This was applauded by various conservative online publications (National Review), but he was not the first choice for other conservatives.  That choice was Notre Dame graduate Amy Cony Barret, who is a staunch Catholic, law school professor, and current judge.  She is favored by religious activists, for her strong advocacy for faith and living with a moral compass.  I think President Trump chose Mr. Kavanaugh for his extensive paper trail and vociferous positions regarding originalist Constitutional interpretation of the laws.  It helps that he is 53 years old, relatively "young" for a justice so that he can serve for a significant amount of time.

While his confirmation fight will be contentious for a multitude of reasons, many of his positions have broad support amongst Republican members of Congress and members of the D.C. Establishment. Some of them include: (provided by the National Review;www.nationalreview.com/bench-memos/brett-kavanaugh-trump-supreme-court-nominee)

1) Taming the Administrative State: Kavanaugh has an extensive track record with rulings that put a limit on what the Federal Government can and cannot do in terms of forcing states to comply with specific provisions that go against the type of intrusive government power on state's rights.  Judge Kavanaugh disagrees with the Chevron principle; where there is a disagreement with a state and a government agency, the government agency has final say on behalf of the United States government.  Many states (conservatives) do not feel this type of governance is Constitutional.

2) Enforcing the 2nd Amendment:  As a D.C. Appeals court ruling, he dissented against Washington, D.C.'s prohibition against the owning of semi-automatic weapons.  He will be a strong defender of those who want to own most types of guns.

3) The American Worker:  Judge Kavanaugh is against allowing undocumented immigrants from voting in union elections, and that certain instances companies cannot choose lower wage employees over American workers.  He also sides with domestic farmers and agriculture interests over foreign competitors.

4) Abortion:  Judge Kavanaugh is a devout Catholic, and his personal views go with Catholic dogma.  In a case against the Department of Health and Human Services, he objected to a court case involving granting the right of a female undocumented minor to seek an abortion while she was under government detention.  It is safe to say that any abortion case that comes across the Supreme Court's docket involving any abortion rights, he will provide a vote towards any conservative opinion and majority.  Democrats are going to make this issue the central component of their vociferous opposition to his sitting on the nation's highest court.

Judge Kavanaugh has over 300 court opinions from which Democratic Senate staff will pore over to find flaws in his beliefs that could damage his ascendancy to the Supreme Court. I feel his nomination will not run through too much obstruction when the U.S. Senate gets to vote.  Because of Senate rules that were changed under previous Democratic Senate Majority Leader Harry Reid, where a simple majority vote in the Senate allowed President Obama's nominees to win confirmation, Republicans now control the Senate.  Democrats will make for great theater in opposing Brett Kavanaugh's nomination unless the judge cannot remove himself from certain positions that might proof fatal, he will soon sit on the Supreme Court.   With two Republican Senators, Susan Collins (R-Maine) and Lisa Murkowski (R-Alaska), who are staunch Pro-Choice Republicans, I don't see those two Senators will vote against Judge Kavanaugh unless he provides any reason why he will not seek to overturn settled law (Roe v. Wade) and precedent regarding future abortion cases.

What the Democrats can best hope for with the remaining liberal judges who are older, like Ruth Bader Ginsburg,  is to pray she remains in good health until the Democrats can regain the upper chamber in the U.S. Congress.   They should also have a good set of judges who a Democratic President, once sworn in January of 2021, can nominate someone who will protect legal issues that the Democrats hold dear.

This is a fight between the ideologies of both parties. The Republicans support judicial originalism, which focuses on any rulings that damage the "original" Constitutional intent of the Founders. In other words, if American voters want something changed with the Bill of Rights, the Constitution or legal precedent, they should use voting and the legislative process to enact change.  The Democrats want proactive judges to use the power of the Supreme Court to overturn policies that will benefit the country (or more truthfully) members of their largest constituent groups (women and minorities).

That is why this Supreme Court nomination of Brett Kavanaugh will be full of grand theater in a highly partisan political environment.  It will determine the course of how we live, and whether we stray from Constitutional intent or treat the Constitution as a "living, breathing" document which will usher the country into the modern era.

Exciting times.