By Blog Writer John Cooper
When Justice Anthony Kennedy announced his resignation from the US supreme court at the end of June, the Republican administration was presented with a rare opportunity to influence America’s highest federal court for decades to come. Kennedy’s was often the swing vote on the Court, as he took a liberal stance on issues such as gay rights and abortion, in contrast to his traditionally conservative standpoint on gun ownership and the restriction of voting rights.
The supreme court is the only judicial institution in America to be ratified by the constitution, with all other courts established through Congress. Comprised of the Chief Justice and eight Associate Justices, tenure on the court is lifelong unless a justice retires, resigns, or is forced to leave through impeachment. Issues are decided by majority votes and are often unanimous.
The timing of Justice Kennedy’s retirement is a boon for president Trump, who will hope to push the appointment of his favoured justice through the Senate before the midterm elections in November. Any new appointment to the court requires Senate approval after a presidential nomination.
However, the ramifications of this appointment reach far beyond a single election cycle, as the Supreme Court has the final say on federal law and matters of constitutional reform, giving rulings on the most controversial matters of public interest. If President Trump’s nomination to fill the vacant Supreme Court seat, Brett Kavanaugh, is approved following the upcoming Senate hearing, it could potentially dictate the course Supreme Court rulings take for the following several decades.
Brett Kavanaugh, 53, is a United States Circuit Justice and a practising Catholic with traditional conservative views. In 2017, he described Roe vs Wade, a ruling made by the Supreme Court in 1973 to decriminalise abortion, as a “binding precedent.” The remark was made during the case of a 17-year-old unaccompanied minor who was denied an abortion after being detained when trying to enter the US.
Although the Court of Appeal subsequently granted the girl an abortion, Kavanaugh stated that this decision was founded on a “constitutional principle as novel as it is wrong.” Kavanaugh, and the government, had argued that it would be of no detriment to the defendant to wait either to return to her home country or to be released to a sponsor in the US, before having an abortion.
Judge Kavanaugh has not publicly stated his opinion on the constitutionality of abortion rights, but his appointment has raised concerns that Roe vs Wade could be overturned. Any future votes on the issue would present Kavanaugh with a unique opportunity to overturn the “binding precedent.”
However, It is notoriously difficult to predict how a Supreme Court Justice will act once appointed. A recent article in the New York Times revealed widespread praise for Brett Kavanaugh from 350 law students who had taken his classes at Harvard, Yale and Georgetown.
“While most of the class shared rather conservative views,” one student wrote, “the judge presented the other side quite well, even though he likely shared most of those conservative views. Many of the HLS (Harvard Law School) professors could learn from his acceptance of views across the political spectrum.”
Donald Trump was elected on the platform of appointing more pro-life justices to the Supreme Court. Brett Kavanaugh ticks this box and also holds the view that a sitting president should not be impeached. All this makes Kavanaugh an attractive choice for a president with the shadow of alleged Russian collusion and sexual harassment allegations hanging over him.
Kavanaugh’s views on impeachment are informed by his involvement in the Starr report, the 1998 investigation into the conduct of Democratic President, Bill Clinton. Kavanaugh was involved in compiling the report on Bill Clinton’s relationship with a White House intern, Monika Lewinsky. It is likely that the disruption to President Clinton’s ability to govern, that he witnessed during the Starr investigation, changed Kavanaugh’s opinion on whether it is in the public interest to impeach a sitting president. A decade after the Starr report was published, Kavanaugh stated in a Minnesota Law Review article that, “a serious constitutional question exists regarding whether a President can be criminally indicted and tried while in office."
The extent to which Judge Kavanaugh feels bound by precedent on issues such as abortion rights, and whether he would extend his personal views on impeachment to his role on the supreme court, could set the tone of political discourse in the US for years to come. In the short term, he is an obvious choice for a president elected on a ticket of social conservatism and with the spectre of impeachment looming ever closer.
Sources and Further Reading
- Adam Liptak, “Brett Kavanaugh, a Conservative Stalwart in Political Fights and on the Bench”, The New York Times (9 July 2018)
- Adam Liptak,‘Best Professor.’ ‘Very Evenhanded.’ ‘Great Hair!’: Brett Kavanaugh, as Seen by His Law Students”, The New York Times (19 July 2018)
- “Brett Kavanaugh picked for Supreme Court by President Trump”, BBC News (10 July 2018)
- Aaron Blake, “Trump, Brett Kavanaugh and what he wrote in the Starr Report about impeaching presidents”, The Washington Post (11 July 2018)
- David Smith, “Trump names Brett Kavanaugh as nominee for next supreme court justice”, The Guardian (10th July 2018)