#Kavanaugh: Hanging In The Balance

On September 4th, the US Senate Judiciary Committee held confirmation hearings on President Trump’s recent Supreme Court nominee, Brett Kavanaugh. Trump nominated Kavanaugh back in July after Justice Anthony Kennedy announced that he’ll retire from the Supreme Court. Kavanaugh has an extensive legal background, which was put under a microscope during his confirmation hearings. Republicans hope that Kavanaugh can be confirmed by the Senate sooner rather than later. Considering the time the Supreme Court starts its new term in October. This particular nomination to the Court is important in that it could change its ideology for decades to come. That is if Kavanaugh is confirmed.  

Brett Kavanaugh has found himself a key figure in the public’s eye and not just because of the position he’s vying for, but also due to the scandals he’s found himself intertwined with.  Before Trump’s nomination, Kavanaugh served for 10 years as a judge on the U.S Court of Appeals for the District of Columbia Circuit. Kavanaugh has a great reputation among conservative political and legal communities. During Kavanaugh’s time on the DC Court of Appeals, he disagreed with a part of the Affordable Care Act, which stated that employers are obligated to provide contraception insurance to their employees or they pay a fine. Employers who opposed providing contraception can bypass that rule by submitting a form to their insures, who will then cover the employee’s contraception for free. Religious groups challenged that ruling saying that even submitting a form, makes them complicit in supporting to provide contraception.

Kavanaugh took a moderately conservative stance on this. He then signed a ruled which forced employers to submit the form violated their religious liberty. At the same time, however, he cited a Supreme Court precedent that said that the government had an interest in providing access to contraception to religious organizations, Instead of having the employers submit a form to insurers Kavanaugh stated, the employers should send the form to the government, so that they can deal with the insurers on this issue.

The stance that Kavanaugh took in this ruling is mainly in line with conservative thinking on this issue, Kavanaugh took a moderate stance on this.

In a guns rights case in 2011, which dealt with a law that required gun owners to register and banned possession of semiautomatic rifles, then Judge Kavanaugh disagreed with the ruling of the case. Kavanaugh stated that banning semi-automatic rifles should be unconstitutional because they “have not traditionally been banned and are in common use by law-abiding citizens for self-defense in the home, hunting, and other lawful uses.” This stance by Kavanaugh is typically in line with conservative gun rights supporters.

The hearings got off to a contentious start. Immediately Democrats on the Senate Judiciary Committee protested that the hearing should be suspended and adjourned due to the Democrats anger and frustration of the last minute document release of Kavanaugh’s role as a lawyer during his time in the Bush White House, where he assisted the former president with decisions like selecting Supreme Court Justices, and helping out with the response to Hurricane Katrina.  The first day of the hearing was also met with protesters who were opposed to Kavanaugh’s nomination. About 70 protesters were arrested on the first day of the hearings. Later in the week during the hearings, Sen. Cory Booker of New Jersey made a controversial decision to release a classified document about Kavanaugh’s stint in the Bush Administration. The content of the document was an email discussing racial profiling. Booker broke a Senate rule that states that a member of the Senate can’t release confidential documents to the public.

Vendetta:

The history of the Supreme Court starts with the passage of the Judiciary Act of 1789, it had its first assembly in 1790. There were landmark cases that were marked along the Court’s history. Some of the most notable cases were Brown v. Board of Education, which ruled that segregated schools in 1954, were not equal institutions. Another notable Supreme Court case was Miranda v. Arizona, where the Court ruled that the police must inform suspects of their rights before questioning them. The Supreme Court has a ton of influence on today’s laws and especially in our politics. Whenever the Supreme Court rules on something, its ruling is set in stone for the lower courts to follow it. This is called stare decisis. The ability to nominate a potential Supreme Court Justice matters deeply to the president because they hope to influence the decisions the Court makes after leaving office This also matters to the senators who want to influence the policy that comes from its decisions.

The Vendetta which concerns Kavanaugh’s nomination is that it causes a big partisan divide, due to the influence and stature of becoming a Supreme Court Justice. Having a 5-4 majority on the Court could tilt it in a liberal or conservative direction for years to come, depending on how a potential Justice has ruled on certain hot-button issues in the past. If Kavanaugh is confirmed, it could potentially swing the Court to a conservative tilt for years to come, given his legal background. Here are a few reasons why most Democrats don’t support Kavanaugh’s nomination, and why Republicans support his nomination.

 

For Confirmation

 

 

  • The GOP mainly supports Kavanaugh’s nomination because, it will mean that there will continue to be a conservative bent on the Supreme Court, meaning that the Court may have a majority of conservative-leaning votes when the time will come to vote on decisive issues. With Justice Kennedy retiring, along with him usually being the “swing vote,” means that on big, divided issues, conservatives can now (hopefully) count on Kavanaugh voting in their favor if he is confirmed onto the Court. Justice Kennedy was appointed by Ronald Reagan, so it worked out for the GOP that his likely successor will also be a conservative judge.  
  • The GOP believes that Kavanaugh is uniquely qualified to be a Supreme Court Justice, and the majority of the party will likely vote in favor of his confirmation. However, there will be a few moderate Republicans to watch out for, to see if they’ll vote in for or against Kavanaugh’s confirmation.
  • The GOP was motivated to come out and vote, by a vacant seat on the Supreme Court in 2016, which belonged to the late conservative Justice Antonin Scalia. This then prompted President Trump to nominate Neil Gorsuch to the Court, who was then confirmed by The Court, in the following spring.
  • With the successful nomination of Gorsuch, President Trump, the GOP, and their base of supporters were most likely thrilled that Trump was still in office when Justice Anthony Kennedy announced his retirement this past summer.  A president has the opportunity to nominate back to back Supreme Court nominees is a rare occurrence in politics.
  • Republicans see Kavanaugh as an “exceptionally-qualified jurist,” who “has served with a high moral standard.”

Against Confirmation:

  • On September 16, an interview was published in the Washington Post with a California professor named Christine Blasey Ford who claimed that Kavanaugh sexually assaulted her at a party, when Kavanaugh was in high school. Ford wrote a confidential letter to a senior Democratic lawmaker about the assault. Ford came out publicly with the allegations on September 16. The Senate Judiciary Committee will hold a hearing on September 27, where Kavanaugh and Ford will testify about the allegation. This will delay Kavanaugh’s confirmation vote, which was scheduled for September 20.
  • On September 23, another woman named Deborah Ramirez came forward and said that while both attending Yale University, Kavanaugh exposed his genitalia to her at a party, while forcing her to touch it, without her consent. Ramirez was reluctant to speak about this allegation because she had trouble remembering the incident. After taking some time to remember the incident fully, Ramirez was certain that Kavanaugh did this to her.
  • Another issue with the nomination pertains to a recently surfaced video of Kavanaugh where he states that he’ll “put the final nail in,” a 1988 court ruling that says that a special three-court has the power to appoint an independent counsel, at the recommendation of the attorney general. This is important to note because of Kavanaugh’s belief in a strong executive branch, and his claim that a sitting president should be exempt from prosecution while still in office.
  • The belief among Democrats is that Kavanaugh could have these beliefs in mind, and try to limit Special Counsel Robert Mueller’s power if Mueller charges President Trump with an obstruction of justice
  • Democrats are concerned that if the current Russian investigation concluded that President Trump obstructed justice, or secretly colluded with the Russians during the 2016 election, then Kavanaugh can interject by saying the president should be exempt from criminal charges because he’s still serving his term in office. This is especially poignant since the head of the Special Counsel Robert Mueller will potentially be releasing some big findings possibly in the next few months.
  • In 1999, Congress added a provision to this ruling which said that the Justice Department can appoint a special counsel to investigate and prosecute criminal cases. Special counsels have less independence from the attorney general and the Justice Department than independent counsels do.

The policy of this topic is that once someone is nominated by the president to be a Supreme Court Justice, then there will be hearings where the nominee has to speak in front of the Senate Judiciary Committee. The Senate Judiciary Committee then votes on whether the nominee should be up for a vote before the full Senate. Then, the Senate will vote on the nominee’s confirmation, after some debate among the senators has occurred. The nominee will need a majority vote in the Senate, in order to be on the Court.

Resolution:

I strongly believe in this process for a potential Supreme Court Justice. It gives proper vetting to a coveted and qualified position. Supreme Court nominees also get the chance to serve in this role for a lifetime, once they’re officially confirmed by the Senate. This just goes to show that a position like this shouldn’t be taken for granted. Each person who goes through this nomination process should have their background and qualifications carefully vetted.

Supreme Court Justices are supposed to interpret the law fairly and equally. Most of the current Supreme Court Justices have been accused of relying on their political leanings, rather than their independent judgment when ruling on a specific case. It’s important that a potential Justice makes an important vote on a case independently, rather than voting in a certain way based on their political beliefs. Potential Supreme Court Justices should have a diverse and qualified legal background. Potential Supreme Court nominees deserve a fair hearing in front of the Senate Judiciary Committee, while lawmakers should have a chance to examine the nominee’s background carefully, for this coveted legal position.

I should also note that the recent sexual assault allegation against Brett Kavanaugh should be taken seriously and that this allegation should be one of the determining factors into whether or not he should be confirmed to serve on the Supreme Court.

 

Take Action:

  • Why Courts Matter: Why Courts Matter informs the public about how judges get elected, and to make sure that diverse and independent candidates are selected for these important positions, and that they protect the constitutional rights of all Americans.  Sign up on their site today to get updates on the work that they’re doing, and to support their mission. (https://whycourtsmatter.org/).

 

References:

 

  1. Savage, G. David. Haberkorn, Jennifer. Wire, D. Sarah. (2018, September 4). Kavanaugh’s Supreme Court hearing gets off to a combative start as Democrats protest the process. Los Angeles Times. Retrieved from http://www.latimes.com/politics/la-na-pol-kavanaugh-senate-hearing-20180904-story.html
  2. Biskupic, Joan. (2018, August 8). Newly released documents illuminate little from Trump’s Supreme Court nominee. CNN. Retrieved from https://www.cnn.com/2018/08/09/politics/brett-kavanaugh-documents-released-senate-judiciary-bush-team/index.html
  3. Roberts, Edith. (2018, June 28). Potential nominee profile: Brett Kavanaugh SCOTUSblog. Retrieved from http://www.scotusblog.com/2018/06/potential-nominee-profile-brett-kavanaugh/
  4. Mangan, Dan. (2018, July 18). Trump’s Supreme Court pick Kavanaugh would ‘put the final nail in’ case that upheld independent counsel law CNBC. Retrieved from https://www.cnbc.com/2018/07/18/supreme-court-pick-kavanaugh-would-overturn-independent-counsel-law.html
  5. Supreme Court Nomination Process Q&A. American Bar Association. Retrieved from https://www.americanbar.org/publications/preview_home/supremecourtnomination.html
  6. Zhou, Li. (2018, July 10). 5 arguments Democrats are using to try to sink Brett Kavanaugh’s nomination Vox. Retrieved from https://www.vox.com/2018/7/10/17553332/brett-kavanaugh-supreme-court-democrats
  7. Steinbuch, Yaron. (2018, September 4). Kavanaugh documents released just hours before confirmation hearings. New York Post. Retrieved from https://nypost.com/2018/09/04/kavanaugh-documents-released-just-hours-before-confirmation-hearings/
  8. Abramson, Alana.  (2018, September 6). ‘Bring it.’ Cory Booker Releases Confidential Documents on Brett Kavanaugh Despite Senate Threat. Time Magazine. Retrieved from http://time.com/5388683/cory-booker-brett-kavanaugh-documents/
  9. Brown, Emma. (2018, September 16). California professor, writer of confidential Brett Kavanaugh letter, speaks out about her allegation of sexual assault. Washington Post. Retrieved from https://www.washingtonpost.com/investigations/california-professor-writer-of-confidential-brett-kavanaugh-letter-speaks-out-about-her-allegation-of-sexual-assault/2018/09/16/46982194-b846-11e8-94eb-3bd52dfe917b_story.html?utm_term=.99364092eeb0
  10. Watkins, Eli. Borger, Gloria. Raju, Manu. (2018, September 23).  Kavanaugh accuser will testify in open hearing on Thursday. CNN. Retrieved from https://www.cnn.com/2018/09/23/politics/christine-blasey-ford-senate/index.html
  11. Todd, Chuck. Murray, Mark. Dann, Carrie. (2018, September 24). Second accusation against Kavanaugh puts his confirmation in real jeopardy. NBC News. Retrieved from https://www.nbcnews.com/politics/first-read/second-accusation-against-kavanaugh-puts-his-confirmation-real-jeopardy-n912461
  12. Savage, Charlie. (2018, July 10). Brett Kavanaugh on the Issues: Abortion, Guns, Climate,and More. New York Times. Retrieved from https://www.nytimes.com/2018/07/10/us/politics/brett-kavanaugh-abortion-guns-environment.html
  13. Ferrechio, Susan. (2018, July 9). GOP leaders line behind ‘impressive’ Brett Kavanaugh. Washington Examiner. Retrieved from https://www.washingtonexaminer.com/news/congress/gop-leaders-support-supreme-court-nominee-brett-kavanaugh
  14. Supreme Court Landmarks. Retrieved from http://www.uscourts.gov/about-federal-courts/educational-resources/supreme-court-landmarks
  15. Nemacheck, L. Christine. (2017). Appointing Supreme Court Justices. The Oxford Handbook of U.S. Judicial Behavior. Doi: 10.1093/oxfordhb/9780199579891.013.9
  16. Judicial Precedent. Retrieved from http://nuweb2.northumbria.ac.uk/bedemo/sources_of_english_law/page_10.htm
  17. Farrow, Ronan. Mayer, Jane. (2018, September 23). Senate Democrats Investigate A New Allegation of Sexual Misconduct, From Brett Kavanaugh’s College Years. New Yorker. Retrieved from https://www.newyorker.com/news/news-desk/senate-democrats-investigate-a-new-allegation-of-sexual-misconduct-from-the-supreme-court-nominee-brett-kavanaughs-college-years-deborah-ramirez

 

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Hashim Arain graduated with a B.A. in Political Science, from Benedictine University in Lisle, Illinois. He’s a “political junkie,” who follows legislative and executive level policies and news, as well as their respective election cycles. Internationally, he is passionate about US-Middle Eastern policies and seeks to publish his work on that. Above all, he strongly values accountability, integrity, and objectivity in our system.

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