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How Kavanaugh is seen on issues like abortion, presidential power and voting rights

Supreme Court nominee Judge Brett Kavanaugh, President Donald Trump
REUTERS/Jim Bourg
President Donald Trump shaking hands with Supreme Court nominee Judge Brett Kavanaugh in the East Room of the White House on Monday evening.

As you have likely heard by now, President Donald Trump nominated Judge Brett Kavanaugh of the D.C. Circuit Court of Appeals to fill the upcoming vacancy on the U.S. Supreme Court to replace the retiring Justice Anthony Kennedy.

The nomination of any new Supreme Court justice is a big development, and, assuming Kavanaugh is confirmed (and, at the moment, I would say that is a reasonably safe assumption), this will be big. Kavanaugh is just 53 and could serve for decades. He solidifies the high court’s conservative wing (replacing the conservative, but not on everything, Kennedy).

The two oldest remaining justices are liberals, Ruth Bader Ginsburg, age 85, and Stephen Breyer, 79. Kavanaugh will be the second youngest (the other Trump appointee, Neil Gorsuch is just 50). Such demographic matters as life expectancy are not exactly destiny. But they are important, and recent presidents have figured out that appointing a relatively young justice to a lifetime gig is a powerful thing.

At the public announcement last night, Trump was about as coherent and rational-seeming as you have ever seen him, bordering on gracious and almost even dignified. Kavanaugh came across charming and appropriate, with his wife and two young daughters at his side.

I’ll save any further thoughts of my own for now and pass along reactions from a couple of local experts and some of those who delivered instant left- and right-leaning analysis on TV:

Hennepin County District Judge Kevin Burke wrote his reaction to me, thus:

“No one should be so naive as to expect that President Trump might have nominated someone viewed as a centrist (not so liberal to scare Republicans but not so conservative as to freak out Democrats). I sincerely hope that I am wrong but this nomination after the Senator McConnell steal likely dooms the thought that the United States Supreme Court might be viewed as something other than a partisan political court.

"When he ran for governor, Arne Carlson pushed the idea that there should be 'merit selection' of judges. While I think he overstated the problem then, there is no room for doubt today. The appointment of appellate judges in the United States is a crazily political process that ill serves the nation.”

You probably know what Burke meant by the “McConnell steal,” but, just in case: Burke refers to Senate Majority Leader Mitch McConnell’s success in 2016 at refusing to even hold hearings, let alone allow a confirmation vote, on President Barack Obama’s nomination of Judge Merrick Garland to fill the vacancy created by the death of Justice Antonin Scalia, which preserved the vacancy to be filled by Trump.

University of Minnesota Law School Professor Heidi Kitrosser, who teaches about matters constitutional, including Supreme Court appointments, emailed me thus:

“As would have been the case with any of the four potential nominees, Judge Kavanaugh will, if confirmed, almost certainly move the Court further to the right than it was already leaning. Make no mistake about it, Justice Kennedy himself was quite conservative. But he did act as a swing vote in some important areas, including abortion, gay rights, and affirmative action. So on those and likely more fronts, the Court will become more reliably conservative if Judge Kavanaugh becomes Justice Kavanaugh.

“As for specific areas, the most talked-about one thus far has been abortion. On that front, Roe v. Wade already has been chipped away at considerably over the years. With a Justice Kavanaugh (again, assuming that he is confirmed), there may well now be a 5-4 majority to overturn Roe outright. Alternatively, the Court may take the less dramatic road of chipping away at Roe yet more vigorously, even if they do not overrule it outright.

“Another area that comes to mind is voting rights. Justice Kennedy was a pretty reliable vote for conservatives when it came to issues such as voter ID and the Voting Rights Act. He had, however, indicated that he might be open to persuasion on the topic of partisan gerrymandering by anti-gerrymandering advocates. With Kennedy gone and a Justice Kavanaugh in place, gerrymandering opponents likely have lost their shot at a Supreme Court victory for the foreseeable future.

“Judge Kavanaugh should also prove quite friendly to litigants who challenge any number of health and safety regulations. While on the DC Circuit, Kavanaugh cast a skeptical eye on agencies' power to create ‘major’ regulations, including clean air regulations, without very clear instructions from Congress. 

“One more thought, based on some quick and dirty follow-up research: There's good reason to think — based on his opinions and his academic writings — that Kavanaugh will be a very reliable vote for strong presidential powers on a number of fronts, including presidential immunity from prosecution and very firm presidential control over executive branch subordinates. This might be the aspect of Kavanaugh that Donald Trump finds most attractive.”

The president's presentation of Judge Kavanaugh happened to occur during the hour that features Rachel Maddow on MSNBC and Sean Hannity on Fox. So a bit of left-right reaction:

On Maddow, Sen. Corey Booker argued that Trump’s nomination of Kavanaugh was self-serving because Kavanaugh has argued that any attempt to indict a sitting president would be a disaster, and he urged Congress to pass a law assuring that no president could be prosecuted unless and until he had been impeached by the U.S. House and convicted and removed by the U.S. Senate.

Nancy Northrup of the Center for Reproductive Rights said that Kavanaugh did not have a clear record indicating how he might rule on abortion rights, but, she said, Donald Trump has publicly stated that anyone he would nominate to the Supreme Court would be prepared to overturn Roe v. Wade, so she assumed Kavanaugh would provide the necessary fifth vote to overturn Roe.

Over on Fox, you’ll be surprised to hear, Hannity predicted that liberals would mount “a full-fledged effort to ‘Bork’ Judge Kavanaugh.” (That’s a reference to the belief on the right that former Judge Robert Bork was smeared and otherwise treated unfairly when he was nominated to the Supreme Court in 1987 by Ronald Reagan. The very conservative Bork was not confirmed.)

“It’s already in full swing," Hannity said, of the Borking of Kavanaugh, because “most Democrats will never accept that they lost the election and that President Trump is appointing somebody who believes in fidelity to the Constitution, who believes in separation of powers, who will interpret U.S. law based on the clear and written intent of our Founders. And a clear and written law as written by a separate branch of government – in other words, the legislative branch.”

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Comments (33)

Mr. Hannity

…is delusional, again, but I came across a clip on MSNBC that I thought interesting. Rachel Maddow was interviewing one of my favorite legal writers, Dahlia Lithwick from "Slate," and Lithwick's point was that Kavanaugh's appointment was a self-protective one. That is, Kavanaugh's views on presidential power and whether indictment of a sitting president was constitutional or not (essentially the same point Corey Booker was making, except Lithwick is not in the Senate or House) make him, should the opportunity arise, likely to vote "no" on the question of whether a sitting president can be indicted for criminal behavior. Lithwick's view was that Kavanaugh's appointment goes beyond the "self-serving" term that Booker used, and moves into the realm of "self-protective."

I have no idea if she's correct or not, but it at least seems plausible. If nothing else, it's a way for Trump to cover his bets should his obvious sleaziness turn out to be as criminal as some would have us believe. It also seems plausible, given RBG's age, that Trump might even have another opportunity for a SCOTUS appointment before he leaves office, even if that leave-taking is in 2020.

Democrats are predictably hysterical regarding the threat of a right-leaning court, and they may turn out to be correct, but I think their concerns are somewhat overblown by the moment, and also amplified by the fact that they were denied a chance to put someone more centrist on the court themselves. Mitch McConnell's calls for "fairness" in the treatment of Kavanaugh's nomination deserves every bit of ridicule it gets and more, since "fairness" is something McConnell went to great lengths to deny both Obama and his nominee, Garland. That said, there seems little or nothing Senate Democrats can do to prevent Kavanaugh's nomination being confirmed.

Not that it should be necessary, but Kavanaugh's nomination simply serves as yet another reminder that elections have consequences. If Democrats don't like those consequences, it's up to them to do something about it, by doing a better job of organizing in upcoming elections, presenting the voting public with better candidates, and those candidates presenting a message to voters that's persuasive.

Stare Decisis

If Kavanaugh is consistent with his expressed judicial philosophy, then he is not likely to vote to directly overturn Roe v Wade, since that is settled law. He would chip away at it however, voting in favor of interpretations limited to its literal content. In the best of all possible worlds he would be another David Sauter.
....
On another front, I would like to see a movement to impeach Gorsuch on the grounds that his appointment violated President Obama's constitution right to appoint Federal justices.

Political agendas

We shouldn't put people on the Supreme Court who won't tell us what their political agendas are. It's as simple as that.

I also favor a statue requiring all justices to give bi monthly press conferences in which they have an opportunity to explain their thinking on current cases and cases going forward. Star Chamber proceedings should be a thing of the past.

The good old days....

Anthony Scalia was confirmed by the Senate 98-0.

Who changed?

Oh yea

Remember the good old days when nominees got a hearing? Remember when the Senate did it's constitutional duty to advise and consent? Remember Garland?

Who changed... Yea.

I Remember Those Days

Supreme Court nominees were selected for their qualifications, not for their stated willingness to hew to a given political line. Ideological special interest groups did not hold a monopoly on vetting judicial nominees. There was no litmus test (e.g. a willingness to overturn established precedent) that made or broke a nominee.

Good times, right?

McConnell

by violating the Constitution he swore to uphold.

the hearing

The fact is, at least as I see it, Republicans are much more focused on the courts than liberals. They have a large and important single issue base that votes on the issue of abortion, and pro life Supreme Court justices are their priority.

Republicans try very hard to project the passion they have on the abortion issue to Democrats but it just doesn't work that well. It's an important issue for us, but it's not a single issue for us. Lots of the troglodytes who lead our party really don't seem to care that much, something that contributes to the frustration of the base.

Murder

They view all abortion as murder, and although I don't agree with that viewpoint, you can hardly ignore the fact that the people who do are going to be pretty vigorous, united and immovable in what they see as their mission to "save babies' lives!".

This is not an issue on which they are likely to "agree to disagree" or accept any form of compromise, and thus this continues as a seemingly insoluble issue (until and unless they get their way - the only answer they'll accept).

Crimes

They say then do, but they certainly are reluctant to say they want to imprison, our daughters, sisters and wives. I do watch with some sympathy, these anti abortion rallies which feature so many women who have had abortions who would all be in prison for the rest of their lives if the policies they advocate were to prevail.

Abortion is an issue on which a lot of room for compromise is there if we want it. I don't care for abortion, while I support the right to choose, I would prefer women make a different choice. But neither do I see myself as some sort of moral arbiter on these matters. The irony is that so many people of extremely low moral character do want to arrogate to themselves that kind of moral authority on one of the most serious issues any of us might face in our lifetimes.

The legislative decision better.....

It would be easier for the pro-life crowd to "Live with" abortion if the decision was made legislatively - by the people - and not by a inventive SCOTUS. Even Mr. Black, who constantly advocates democracy over the representative republic system, should be and advocate for the people having a voice concerning abortion.

It also would be helpful if "science" were used to help us determine if the baby in the womb is "the woman's body" like a fingernail that can be easily discarded or something different.

I am not a process guy. When

I am not a process guy. When I watch one of my favorite movies "A Man for All Seasons", I root for Henry the Eighth. Note how that while things worked out badly for Thomas More, they worked out pretty well for England as a whole. For me, it's a question of scale. People are important in a way highly technical and abstruse points of law. Way too often in my view, these issues are reduced to a question of what makes the lives of judges and politicians either. That should never be a priority.

Nonsense

The anti-abortion crowd will accept no compromises. That's apparent from your second paragraph, where science and the woman's body are in scare quotes.

Today, it's abortion, tomorrow, it's birth control. Isn't it interesting that the most vehemently anti-abortion blocs in the US (the Catholic Church, conservative evangelical groups) are male dominated?

Under His eye.

The irony is, the anti

The irony is, the anti abortion side doesn't know what they want. It's an issue they avoid because they know any attempt to address it will divide them, something that's bad for majorities and disastrous for minorities.

The best I can tell is that anti abortionists want abortion to be illegal, but they don't want it to be a crime. They want girls who have abortions to feel shame but not guilt. For themselves, they want respect but they don't want responsibility. And the fact is, literally no one has any idea at all to give them these things.

In practical terms, Republicans don't want abortion to go away. They love the issue too much, and are far too aware of the downside in actually addressing it. I have asked a friend of mine who hangs out in St. Paul a lot whether abortion is actually an issue the legislature deals with much these days. After all, because of court ruling, it's mostly a federal issue. He said no it isn't, but that when it is brought to the floor by Republicans who when they have a majority are the only ones who can bring things to the floor, it happens at odd hours in sessions run by obscure member who otherwise not often heard from. For Republicans, abortion voters are their to be exploited in order to achieve the real goal of the GOP which is to lower taxes on rich people.

Emmanuel Goldstein

It's easier to rally people against something than it is to rally them in favor of something. We see that every day here. Republicans can't defend or even, often enough, articulate clear policies that they favor. Instead, they resort to bashing a list of Democratic figures. After all, what gets the goobers riled up more than a round of "Lock her up!" chants?

The same thing is true about abortion. It has been estimated that one of every four women in the United States will have had an abortion by the time she is 45. We all know someone who has had an abortion, whether we know it or not. Surveys also show that around 59% of the women who have had abortions don't regret their decision. Even so, it remains remarkably easy to stir up angry opposition.

There was an interesting article in Politico a few years back that traced the arc of the conservative opposition to abortion. For many years, evangelicals supported the right of a woman to choose an abortion, even before Roe v. Wade. Abortion and birth control were "Catholic" issues, not a big deal to evangelicals. In the mid 70s, however, the political landscape changed. With race-baiting a political non-starter (at least, at that time), something new was needed, and abortion stood in.

The majority of voters want Roe v. Wade preserved, and do not want abortion criminalized again. Unfortunately, the loudest voices are the ones that set the agenda. It's hard to get people equally upset about preserving a right that has existed for over 40 years and that many regard as too firmly established to discharge.

The problem for middle of the

The problem for middle of the road voters, like me, is that abortion has become birth control. That's not something a civilized society should have to tolerate, in my opinion.

Most people are tolerant of 1st trimester abortions; many less for 2nd trimester and almost no one for 3rd.

There is a compromise that can be sold to voters in states that will put the issue on the ballot (where it belongs) after RvW is overturned.

Which road

are you in the middle of?
Most people of any political persuasion do not believe that third trimester abortion should be available for reasons other than severe medical problems that threaten the life of the mother.
The problem is that most antiabortion activists are also anti birth control.
The United States has more abortions as less availability of birth control than most developed nations.
To quote Bill Clinton: abortion should be "Safe, Legal, and Rare".

Third Trimester

"Most people of any political persuasion do not believe that third trimester abortion should be available for reasons other than severe medical problems that threaten the life of the mother." Reputable physicians will not perform third trimester abortions in the absence of a very real threat to the life of the mother.

To quote Bill Clinton: abortion should be "Safe, Legal, and Rare". I like to think of it as "Safe, Legal, and None of My Business."

We are a republic (recite the pledge if you can)

not a democracy.
Our system of government is based on electing representatives to make decisions, and then electing new ones if we're not happy with those decisions. Not a mob rule (from the Greek demos=mob); the founders built in protection from the 'tyranny of the majority'.

Republic and not a democracy

Or is it a democracy, not a republic. I have heard it both ways so often, I tend to forget. I am pretty it's a distinction sorely lacking in difference. Tyranny can be an outcome with either.

Agreed...

I agree with Ron. There is no right-leaning justice alive that would get a 98-0 vote.

We cannot know why Trump nominated Kavanaugh, yet everyone seems to have their own ‘certain’ opinion. Did people think Trump would nominate a left-leaning justice?

The partisanship in our nation continues because people make up stories (in this case, about our next Supreme Court Justice) and it snowballs from there as the stories are repeated as truths.

No unanimous votes

No justice alive, left-leaning or right-leaning, would now get close to a unanimous vote. 31 out of 40 Republicans opposed Sotomayor, and 36 of 41 Republicans (plus Ben Nelson) opposed Kagan.. 40 of 44 Democrats (plus Chafee and independent Jeffords) opposed Alito. Roberts was the last to get even half of the opposition party (22 of 44 Democrats).

Confirmation

This is an excellent choice, coming from a person who does not support this President or his policies. Mr. Kavanaugh is well qualified for the position, and he should breeze through confirmation hearings.

Those who would like to obstruct this nomination, in part due to what happened to Mr. Garland (a travesty, in my opinion) should get back to getting their party in order in preparing for future elections. Democrats in the Senate should see this nomination as an opportunity take a step toward ending political partisanship and vote for the judge on his merits.

The problem is

that this appointment guarantees a right wing court for the next twenty years or so ... long after the next ten elections. It would take a massive Democratic takeover of the House, Senate and Presidency to pass legislation that would limit the damage that this court will do.

Could be worse

While not calling this nomination an "excellent choice", I do agree that he is qualified in training and experience. I also do not agree with this President's conduct in office, including making terrible choices for Cabinet positions and support staff. I am concerned that if, unexpectedly, this candidate was not confirmed, then the next choice would be even worse. One cannot think that the President would make another nominee more center, but rather even farther to left and perhaps incompetent for this crucial position.

Excellent may be a strong

Excellent may be a strong word, but considering the other options that were floated - I was pleased with the result. The others the Federalist Society had endorsed appeared more conservative than Kavanaugh, especially Ms. Barrett. The President gave us the most reasonable judge of those available.

On a sidenote, I have a feeling Roberts may slowly morph into Kennedy's role of the "moderate" conservative who may become more a swing vote than a reliable vote for the right wing of the Court. Time will tell if this turns out to be true.

As the court shifts

(and the stomach turns)
the Right becomes the Center.
It's more the court shifting than Roberts.

Voting On The Merits

In other words, the Democrats should play by a rule book that McConnell has thrown away. Might happen, there's a sucker born every minute.

Well Qualified

Judge Kavanaugh's qualifications for this position are that he is the product of a rarefied legal environment. He is one of the elite.

Of the current Justices of the Supreme Court, I believe only Justice Sotomayor as any significant real world experience. The others have all followed predictable paths: graduation from a top law school, perhaps a federal appellate and Supreme Court clerkship, a little time at a silk stocking law firm, and then academia or an important government job (Office of Legal Counsel, Solicitor General), before being appointed to a federal appellate court. The current members of the Court all have impressive resumes (a heck of a lot more impressive than mine, I will grant you). What do they know of the real world, and how the law affects real people? It's nice to think of the law as an abstraction, but it's an abstraction that has real world consequences Monday morning at the first appearances for criminal matters, or when someone who was taken advantage of by a predatory lender is trying to salvage themselves.

Looking at the lists of great and near-great Supreme Court Justices, most of them had some non-elite legal experience. They saw how things worked on the street, not just in the library. Why can't we find someone with that experience again?

Swamp Creature

Kavanaugh is a swamp creature if there ever was one. He's not just out of touch, he's Washington out of touch.

Whatever happened to a governor being on SCOTUS? Someone who had to actually meet and greet citizens, and get held to some degree of accountability.

Facing the Voters

If I recall correctly, the last Supreme Court Justice to face the voters for elective office was Justice O'Connor, who served for a time in the Arizona Legislature and was elected to the state court bench.

Before that, most Justices had some track record of local civic involvement.

Justices

The problem with justices lately is that their resumes are much more distinguished than the their careers. They are political creatures exclusively, whose whole live have been dedicated to creating a record that would not be unduly troublesome at a future nomination hearings.

I do believe the days of judicial supremacy are and should come to an end. After two hundred years the institution has lost it;s way. It has lost credibility and respect, and I think it's time for both checks and balances created by the constitution should kick into action.

If in fact ...

potus nominated the candidate for his position on regarding indictment of a sitting potus verification will not take long. This executive branch will push for that to be established the moment the candidate is enconsed. There will be a rushed decision on the case and it will be all over.