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 rallies in Nevada amid Supreme Court flurry: 'We're gonna get Brett' Trump: 'Good news' that Obama is campaigning again Trump boosts Heller, hammers 'Wacky Jacky' opponent in Nevada 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 CollinsPoll: More voters oppose Kavanaugh’s nomination than support it Feinstein's office says it has received threats over Kavanaugh Ford taps Obama, Clinton alum to navigate Senate hearing MORE (R-Maine) and Lisa MurkowskiLisa Ann MurkowskiAlaska gov, lieutenant gov come out against Kavanaugh The Memo: Tide turns on Kavanaugh Budowsky: Kavanaugh and the rights of women MORE (R-Alaska) — moderates who are generally pro-choice; Joe DonnellyJoseph (Joe) Simon DonnellyThe Memo: Tide turns on Kavanaugh McCaskill to oppose Kavanaugh nomination The Memo: Kavanaugh firestorm consumes political world MORE (D-Ind.) and Dean HellerDean Arthur HellerTrump rallies in Nevada amid Supreme Court flurry: 'We're gonna get Brett' Trump: 'Good news' that Obama is campaigning again Trump boosts Heller, hammers 'Wacky Jacky' opponent in Nevada 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) ManchinThe Memo: Tide turns on Kavanaugh McCaskill to oppose Kavanaugh nomination The Memo: Kavanaugh firestorm consumes political world 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 McCaskillTrump rallies in Nevada amid Supreme Court flurry: 'We're gonna get Brett' Trump boosts Heller, hammers 'Wacky Jacky' opponent in Nevada Google says senators' Gmail accounts targeted by foreign hackers MORE of Missouri and Jon TesterJonathan (Jon) TesterTrump Jr. campaign event looks for new venue after Montana restaurant declines to host CBS Poll: Missouri, Montana Senate races in dead heats Dems play waiting game with Collins and Murkowski 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.