Court Battles

Controversy over Kavanaugh could weigh on Roberts court

The political fury surrounding Brett Kavanaugh’s confirmation process could prompt the Supreme Court to hold off on tackling high-profile cases on issues like abortion and affirmative action in its upcoming term, according to legal experts who say Chief Justice John Roberts may want to take steps to depoliticize the court.

“Depending on what happens with the rest of confirmation process, the court might feel kind of battered and like it needs to take things more slowly,” Nicole Saharsky, a partner at the D.C. firm Gibson Dunn, said this week at a Georgetown Law panel discussion.

The perception of the high court as being apolitical is something Roberts, who was nominated by former President George W. Bush, has sought to protect.


Irv Gornstein, executive director of Georgetown’s Supreme Court Institute, said Roberts wants the court to be perceived as an impartial, nonpartisan body whose justices decide legal questions based on their view of the law, not politics.

“I think he would be concerned that a series of 5-4 rulings, in which the five are Republican-appointed justices and the four are Democrat-appointed justices, would threaten to destroy that perception of the court,” he told The Hill in an email.

“I don’t think the Chief Justice wants to be remembered as the Chief Justice who presided over the court at the time that the public lost faith in the court, and began to regard it as just another partisan institution,” Gornstein added.

The way the current confirmation proceedings are playing out has already drawn criticism from some members of the judicial branch.

Justice Ruth Bader Ginsburg, who was appointed by former President Clinton, criticized the Senate confirmation process earlier this month, calling it a “highly partisan show.”

She noted the wide margins by which the Senate confirmed her, the late Justice Antonin Scalia, appointed by former President Reagan, and Justice Stephen Breyer, a fellow Clinton appointee.

“The way it was was right,” she said, while speaking at George Washington University last week. “The way it is is wrong.”

Sen. John Kennedy (R-La.), a member of the Senate Judiciary Committee, said on “Fox News Sunday” that Kavanaugh’s confirmation process so far has been an “intergalactic freak show.”

“I’m fairly confident that our Founding Fathers did not intend the process to work this way,” he said, noting that more than 240 protesters interrupted the proceedings and that Democratic members broke committee rules by releasing confidential documents.

Kavanaugh’s confirmation is now in jeopardy following sexual misconduct allegations stemming from when he was 17 years old. If Trump is forced to find a new nominee to fill the vacancy left by Justice Anthony Kennedy’s retirement in July, the fight could start all over again.

Even before Kavanaugh was nominated, half of the electorate said politics played a decisive role for Supreme Court justices.

A poll from Quinnipiac University conducted in July found that 50 percent of voters said the Supreme Court is motivated primarily by politics, with 42 percent saying justices are motivated by the law.

That’s a viewpoint Roberts pushed back against during his confirmation hearings in 2005, when he compared Supreme Court justices to umpires at baseball games, promising “to call balls and strikes, not pitch or bat,” once he’s on the bench.

“The role of the umpire and judge is critical,” he said. “They make sure everybody plays by the rules, but it is a limited role. Nobody ever went to a ballgame to see the umpire.”

While Roberts can try to slow the number of blockbuster cases that come before the court, experts point out that he’s just one vote on a bench of nine. Only four justices are needed to hear a case.

And with a number of controversial cases rising up through the lower courts, there could be political issues the justices can’t avoid. Challenges to the Affordable Care Act, the Trump administration’s decision to rescind the Deferred Action for Childhood Arrivals program and the constitutionality of special counsel Robert Mueller’s appointment are all in the pipeline.

Some say there’s no rush to take on divisive cases.

“One of the great aspects of having this gig is you can play the long game,” said David A. Kaplan, author of the new book “The Most Dangerous Branch: Inside the Supreme Court’s Assault on the Constitution.”

“Presidents come and go, senators come and go … justices are there for many, many years,” he said. “They can afford to play the long game. If they decide not to take a case today, some version of that case on abortion, same-sex marriage or freedom of religion will be there tomorrow or somewhere down the road.”

Donald Verrilli Jr., who served as solicitor general under former President Obama, said a slower pace may be the difference between just one or five years before a case reaches the court.

“The question of what’s going to be on the docket isn’t always 100 percent in the control of the justices or even the chief justice,” he said, while speaking at Georgetown Law this week.

“I think, for example, marriage equality — that issue got to the court faster I think than most members of the court would have preferred in the wake of Windsor,” he said, noting the 2013 ruling that recognized same-sex marriages under federal law. “I anticipate that’s going to be true about abortion also.”

Tags Brett Kavanaugh confirmation hearing John Kennedy Robert Mueller Supreme Court

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