Judge Kavanaugh and SCOTUS: One Senate Vote Could Decide Confirmation Battle

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Kavanaugh and Trump. Photo CNN Screenshot.

The battle to confirm Judge Brett Kavanaugh, 53, recently nominated by President Trump could be decided by one Senate vote.

With affirmative action, voting rights, abortion rights, immigration, the Affordable Care Act, and a Federal investigation in balance, Judge Kavanaugh, if confirmed, would give conservatives a legal stronghold for decades. The fight over this nomination began only moments after the announcement.

Conservatives “have been pushing back [against liberalism] for 30 years, and obviously, the announcement [of Kavanaugh's nomination] is a big step in the right direction,” said Curt Levey, the president of the Committee for Justice, a conservative activist group. A graduate of Yale Law School, Judge Kavanaugh is the only child of two judges.

He is currently on the Washington D.C. Circuit Court.
Judge Kavanaugh was nominated to fill the seat of retiring Associate Justice Anthony Kennedy, 81. Brett Kavanaugh was a law clerk under Justice Kennedy, who was nominated by President Ronald Reagan.

Life long tenure is meant to protect justices of the Supreme Court from political pressures from Presidents or the public.
However, Donald Trump had said that he would only appoint justices who will overturn Roe v. Wade. “I am pro-life,” he said. The legality or illegality of abortion would “go back to the individual states” to decide. Roe v. Wade is the 1973 Supreme Court decision making abortions legal, nationwide. Prior to Roe v. Wade, each State decided if abortion was legal.

Recently, Judge Kavanaugh ruled against allowing a 17-year-old rape victim who became pregnant and wanted an abortion. Kavanaugh, who is Catholic, and has two daughters, does not believe in abortion. Judges, especially those seeking the high Court, will be questioned by the Senate Judiciary Committee about their past legal rulings and ability to be neutral interpreters of the law.

Senate Majority Leader Mitch McConnell called Judge Kavanaugh a “superb choice.” While Senate Minority Leader Charles Schumer vowed to fight this nomination “with everything I have.”

All Presidents must seek the ‘Advice and Consent’ of the Senate regarding the appointment of Federal judges. Currently, Republicans control the Senate by one vote, 50-49 because Senator John McCain is hospitalized. Only Senators present in the Senate chamber can vote. Senators Margaret Collins of Maine and Lisa Murkowski of Alaska, both Republicans, have expressed reservations about voting for any nominee who would overturn Roe v. Wade.

Last year, a Republican controlled Senate blocked the confirmation of Merrick Garland, who was President Barack Obama’s nominee to the high Court. However, Senators Collins and Murkowski voted with their party and confirmed the nomination of Neil Gorsuch, last year.

Brett Kavanaugh worked under Independent Counsel Kenneth Starr during the investigation of President Bill Clinton and assisted in the impeachment proceedings. Kavanaugh was a staff secretary to President George W. Bush during the Bush v. Gore case and later joined the Bush administration. The New York Times reported that Kavanaugh’s “decisions have been applauded by conservatives” especially on the topics of gun rights, campaign finance and religious freedom.

Conservatives have used religious freedom to challenge the Affordable Care Act and same-sex marriage. Religious freedom was the successful argument made by a Colorado baker who refused to make a cake for a gay couple. Religious freedom was also a successful legal argument for conservatives in cases challenging access to contraceptives under the Affordable Care Act.

Last year, Gorsuch was presented to Donald Trump by conservative organizations to fill the seat of the late Justice Antonin Scalia, a conservative. Similarly, Judge Kavanaugh’s name was provided to the White House by the Federalist Society, a conservative law organization, and the Heritage Foundation, a conservative think-tank.

Conservatives are seeking consistently conservative jurists. Justice Kennedy gained a reputation as a “swing justice” because he supported abortion rights, gay rights and same-sex marriage despite his conservative pedigree. When Chief Justice John Roberts, a conservative nominated by George W. Bush, ruled that the Affordable Care Act was constitutional he was denounced by conservatives. Justice Clarence Thomas, nominated by President George H.W. Bush, and the only African-American on the Court, has been the most consistently conservative, ruling against voting rights, affirmative action, abortion rights and the Affordable Care Act.

Democrats want to slow down the confirmation process until after the mid-term elections in November, hoping to capture control of the Senate. McConnell has said that he is pushing to hold confirmation hearings in the early fall. Millions will be spent by advocates for and against Judge Kavanaugh’s nomination.

The battle over this nomination may end over one single vote in the Senate. The Supreme Court’s term begins in October.

Gloria J. Browne-Marshall is a legal correspondent, author of “The Voting Rights War” and a professor of constitutional law at John Jay College (CUNY). She is working on her first novel.

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