BY: TANNER KENNEY
Associate Justice Anthony Kennedy of the Supreme Court of the United States (SCOTUS) announced his retirement from the nation’s highest judicial body on June 27th paving the way for an uphill battle for both parties on the road to the midterms. Since his nomination for the position by former Republican President Ronald Reagan, Kennedy has been hailed as a voice of moderation in comparison to his more firebrand counterparts on the bench such as Associate Justice Clarence Thomas and former Associate Justice Antonin Scalia. Pundits, legal observers, and advocates, alike, fear this will signal the erosion of equal rights and women’s health protections in the coming years.
However, Kennedy was no liberal as he voted in-step with former Chief Justice William Rehnquist, a self-avowed staunch conservative, more than any other Justice during Rehnquist’s tenure. Kennedy’s long-rumored retirement – at the age of 82 – could have a tremendous impact on the American political landscape for generations to come as Republican President Donald Trump will be handed his second Supreme Court nomination in under two years.
As President Trump and his Administration continue to dance around the subject of denuclearization of the Korean peninsula, start trade wars with the nation’s closest allies, separate migrant children from their parents at the border and hold the legislature hostage, Trump’s eventual nominee inherently becomes that much more consequential. Discussions amongst the Trump Administration and GOP leaders regarding potential nominees have been occurring since the nomination of Associate Justice Neil Gorsuch, itself witness to a confirmation process hijacked by procedural changes at the hands of Senator Mitch McConnell.,
Topping Trump’s most recent list of potential nomineesis Judge Brett M. Kavanaugh of the District of Columbia’s Circuit Court of Appeals. Kavanaugh, a lifelong Republican, has served as the chief deputy to former Independent Counsel Kenneth Starr and was appointed to his post by former President George W. Bush.
Recently, Judge Kavanaugh has made headlines for his controversial opinions in several cases, including authoring the dissent to a case wherein two pregnant migrant teenagers were able to obtain abortions while detained. In the majority ruling, he was opposed by D.C. Circuit Chief Justice Merrick Garland, who’s own nomination to SCOTUS was stalled by Senator Mitch McConnell during President Barack Obama’s final year in-office, eventually to be replaced by Gorsuch.
Kavanaugh has also played a large role in removing Obama-era regulations protecting American air-quality and supported the repeal of portions of the Affordable Care Act aimed at providing healthcare services to America’s most vulnerable populations. Joining Kavanaugh on the list of potential nominees are Seventh Circuit Justices Thomas Hardiman of Pennsylvania and Amy Coney Barrett of Indiana. Alongside Kavanaugh, both bring the legal and conservative credentials to expedite a confirmation. As a professor of law at Notre Dame University, Judge Coney Barrett rose to the Seventh Circuit just last year following her nomination to the post by President Trump.
Coney Barrett’s staunch beliefs became an issue during her nomination process as her support of controversial subjects was called into question by Senator Dianne Feinstein (D – CA). Senator Kirsten Gillibrand (D – NY) has also criticized the Trump Administration’s list of potential nominations for its lack of judges willing to endorse basic civil rights and address women’s health issues. Judge Hardiman, himself a finalist for the seat eventually filled by Gorsuch, graduated from Notre Dame and Georgetown Law, has an extensive legal background, and is praised by colleagues as “down-to-Earth[.]” He was previously nominated to the District Court of Pennsylvania by former President George W. Bush and ascended four years later.
At the age of 52, Judge Kavanaugh would be one of the younger Justices on the bench. However, his relationship with SCOTUS runs deep and dates back to 2006 as he has sent the second most clerks to the nation’s high court, trailing only Chief Justice Garland. Both Democrats and Republicans have chastised McConnell’s maneuver and, as such, Senate Minority Leader Chuck Schumer has demanded that the body follow the precedent set by Senator McConnell during the Garland confirmation debacle when he argued that the “people deserve a voice”.
Garland, himself, remains a subject of debate as President Trump and the GOP hope to confirm a nominee prior to the midterm elections in the fall of 2018. As it currently appears, Democrats are poised to take control of the House of Representatives and have their eyes set on McConnell and the Senate, as well. For his part , McConnell has promised to confirm any nominee Trump puts forward by Labor Day, however the confirmation process may not go as smoothly as McConnell plans as Senators Lisa Murkowski (R – AK) and Susan Collins (R – ME) are public supporters of abortions rights and women’s health and, as such, may refuse to vote to confirm a nominee who would vote to reverse the progress made through Roe v. Wade. Moreover, Sen. John McCain (R – AZ) has indicated he will not attend a confirmation vote as he recovers from cancer. At the same time, Senator Jeff Flake (R – AZ) has been attempting to block President Trump’s other judicial nominees in a bid to get the Senate to vote on curbing the President’s power to impose tariffs. Needless to say, the battle on both sides will be a hard fought one.
Although, in recent weeks, the court has seen its conservative justices cast deciding votes and issue opinions supporting the protection of individual liberty in the face of criminal prosecution, it has also doled-out hypocritical decisions regarding the freedom of speech in both the private and public sectors. In the case of Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, SCOTUS held that the Commission erred in “assessing a cakeshop owner’s reasons for declining to make a cake for a same-sex couple’s wedding celebration violated the free exercise clause.”
However, in the case of Janus v. American Federation of State, County, and Municipal Employees, Council 31 regarding the freedom of both expression and assembly, SCOTUS decided in favor of the States regarding the requirement to pay union dues while working for any level of government. This legal unpredictability – although predictably partisan – has been lambasted by both conservatives and liberals as a damaging process and, as such, “Democrats should dig in hard here and do everything they conceivably can do to block this nomination[.]” – Steve Schmidt, Former Republican Strategist.
All of this comes at an extremely volatile time for the American people, something the Supreme Court has long-sought to avoid, as evidenced by its lifetime appointments and slow movement in regards to the recognition. Regardless of the eventual nominee, the confirmation process will be a monumental event in American judicial history as it will illuminate the various ways in which the current model of governmental checks-and-balances has eroded and must be reformed.
Tanner Kenney is an energy and media professional with a background in journalism and received his M.S. in Global Affairs, Environment & Energy Policy from NYU’s Center for Global Affairs. Recently, Tanner has focused on the advocacy of sustainable development through renewable energy technologies, transportation efficiency, and inclusive public policy.
Photo Credit: Carolyn Kaster/AP
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