What to expect during Kavanaugh's confirmation battle

What to expect during Kavanaugh's confirmation battle
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It’s official: President TrumpDonald John TrumpTrump nominates Jeffrey Rosen to replace Rosenstein at DOJ McCabe says ‘it’s possible’ Trump is a Russian asset McCabe: Trump ‘undermining the role of law enforcement’ MORE has nominated Brett Kavanaugh to succeed Justice Anthony Kennedy as an associate justice on the U.S. Supreme Court.

Kavanaugh has served on the District of Columbia Circuit Court since 2006. A graduate of Yale College and Yale Law, he clerked for the man he’s been chosen to replace, as well as for legal legend Alex Kozinski. He twice worked for Ken Starr, first as a fellow in the U.S. Solicitor General’s Office and later in the Office of Independent Counsel. He’s known in Washington, DC circles and among Republicans and will be difficult to portray as an ideologue or extremist.

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Republican presidents have struggled with Supreme Court nominations. Kennedy became a justice only after President Ronald Reagan’s failed nomination of Robert Bork, followed by Douglas Ginsburg’s admission of past drug use that resulted in his withdrawal from consideration for a seat on the High Court.

 

Dwight D. Eisenhower nominated some of the most liberal justices in the Court’s history, Earl Warren and William J. Brennan. Richard Nixon nominated Justice Harry Blackman, who authored the opinion in Roe v. Wade (1973). Gerald Ford nominated John Paul Stevens, who has, in retirement, advocated repealing the Second Amendment. George H.W. Bush nominated David Souter, and George W. Bush’s selection of John Roberts, seemingly impeccable at the time, has disappointed many conservatives in light of cases like National Federation of Independent Business v. Sebelius (2012), which alleged, among other things, that Obamacare’s individual mandate to purchase health insurance was a “tax,” not a “penalty.”

Kennedy himself has cast votes in seminal cases with the left wing of the Court, and that’s what makes the present nomination so momentous. Replacing Antonin Scalia with Neil Gorsuch preserved a conservative voting bloc, with Kennedy serving as the swing vote, whereas Kavanaugh could tip the balance: five conservatives (Roberts, Clarence Thomas, Samuel Alito, Neil Gorsuch, and Kavanaugh) against four liberals (Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan).

Senate Republicans will move quickly on Kavanaugh’s nomination in hopes of making him a sitting justice by October, when the Supreme Court’s next term commences, and before the 2018 midterm elections take place. Judicial Crisis Network has already announced a major ad campaign in states like Indiana and West Virginia, where there are currently important and competitive midterm congressional races ongoing.

Gorsuch was nominated on Jan. 30, 2017, confirmed by the Senate on April 7, and took office on April 17. Two months and 17 days passed from when he was nominated to when he took office. If Kavanaugh’s confirmation spans the same period, he will take office on Sept. 23, 2018 — just meeting the Republicans’ desired deadline.

Six key senators, however, could disrupt the process: Susan CollinsSusan Margaret CollinsTexas senator introduces bill to produce coin honoring Bushes GOP Green New Deal stunt is a great deal for Democrats On unilateral executive action, Mitch McConnell was right — in 2014 MORE (R-Maine) and Lisa MurkowskiLisa Ann MurkowskiOn unilateral executive action, Mitch McConnell was right — in 2014 The Hill's 12:30 Report — Presented by Kidney Care Partners — Trump escalates border fight with emergency declaration On The Money: Trump declares emergency at border | Braces for legal fight | Move divides GOP | Trump signs border deal to avoid shutdown | Winners, losers from spending fight | US, China trade talks to resume next week MORE (R-Alaska) — moderates who are generally pro-choice; Joe DonnellyJoseph (Joe) Simon DonnellyOvernight Energy: Trump taps ex-oil lobbyist Bernhardt to lead Interior | Bernhardt slams Obama officials for agency's ethics issues | Head of major green group steps down Trump picks ex-oil lobbyist David Bernhardt for Interior secretary EPA's Wheeler faces grilling over rule rollbacks MORE (D-Ind.) and Dean HellerDean Arthur HellerTrump suggests Heller lost reelection bid because he was 'hostile' during 2016 presidential campaign Trump picks ex-oil lobbyist David Bernhardt for Interior secretary Oregon Dem top recipient of 2018 marijuana industry money, study finds MORE (R-Nev.), who are campaigning for reelection in “purple” swing states this fall; Doug Jones (D-Ala.), who must cast conservative votes if he wishes to retain his seat beyond 2021; and Joe ManchinJoseph (Joe) ManchinDemocrats brush off GOP 'trolling' over Green New Deal Senate confirms Trump pick William Barr as new attorney general GOP wants to pit Ocasio-Cortez against Democrats in the Senate MORE (D-W.Va.), who is up against the reliably conservative Patrick Morrisey, the former Attorney General of West Virginia, in the 2018 midterm election.

Each of these senators except Jones, who has never voted on a Supreme Court nominee, voted “yea” to confirm Gorsuch. Two Democratic senators in conservative states, Claire McCaskillClaire Conner McCaskillMcCaskill: Lindsey Graham 'has lost his mind' Trey Gowdy joins Fox News as a contributor The Hill’s 12:30 Report: Trump AG pick Barr grilled at hearing | Judge rules against census citizenship question | McConnell blocks second House bill to reopen government MORE of Missouri and Jon TesterJonathan (Jon) TesterHow the border deal came together GOP braces for Trump's emergency declaration Border talks stall as another shutdown looms MORE of Montana, voted “nay” on Gorsuch and will likely do so again on Kavanaugh.

Only 12 nominees, historically, have been rejected by the Senate, and just four since the turn of the twentieth century. The odds are thus in Kavanaugh’s favor, despite the rancorous political climate and threats of Democratic stonewalling. In 2017, conservatives worried that Gorsuch wouldn’t gain support among moderates, but he was confirmed with a 54–45 vote after Democratic senators, mostly for show, attempted and failed to filibuster his nomination.

In the following weeks we’ll be immersed in contentious, constructive debates over Kavanaugh’s extensive record, but it could be that the biggest battles over the judiciary are yet to come. The two oldest justices on the Supreme Court are Breyer, who turns 80 next month, and Ginsburg, who is 85. Either could retire during Trump’s first term. If they don’t, the Supreme Court will become the hottest political issue going into the 2020 presidential election — and many elections to come.

Allen Mendenhall is associate dean at the Faulkner University Thomas Goode Jones School of Law and executive director of the nonprofit Blackstone & Burke Center for Law & Liberty.