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After a tough battle, Kavanaugh is likely to be confirmed for the Supreme Court

It’s too late for the Fourth of July.  But expect political fireworks from the Senate confirmation process for Judge Brett Kavanaugh, President Trump’s nominee for the Supreme Court.

As usual in recent Supreme Court confirmation battles, there are sure to be heated and tough questions from skeptical senators of the opposition party, political skirmishes on both sides, and very few specific answers from the nominee about legal views or cases.

Judge Brett M. Kavanaugh

Still, barring unexpected revelations of major significance, the end result will likely be the same as last year, when the Senate very narrowly confirmed Neil Gorsuch to the high court. Though it may take some time, Kavanaugh will probably be confirmed this fall with just a few votes to spare.

However, the political furor this year may be even louder than for the Gorsuch confirmation. That’s because Gorsuch replaced a staunchly conservative justice, the late Antonin Scalia. As Gorsuch was expected to be similarly conservative, his appointment would cause little change in the balance or overall view of the Supreme Court.

On the other hand, Kavanaugh has been nominated to fill the seat of Justice Anthony Kennedy, who retired in July at age 82 after more than 30 years on the court. Kennedy came to be viewed as the centrist or “swing” vote on a court divided almost evenly between conservative and liberal justices.

When the court split 5-4 on a case, Justice Kennedy frequently was the crucial fifth vote that tipped the balance one way or the other. Named to the court by President Ronald Reagan, Kennedy remained generally conservative on most cases involving business matters and criminal law. But over time he grew more liberal on social issues, such as abortion and same-sex marriage.

Admittedly, one never knows for sure how a justice will vote once on the court. Nevertheless, the assumption based on Kavanaugh’s record as a federal appeals court judge is that he will be a more consistent conservative vote than Kennedy was. There is no doubt that the much younger Kavanaugh, at age 53, has the potential to prolong and solidify a narrow conservative majority on the court.

On social issues in particular, it is reasonable to anticipate that a Justice Kavanaugh would take a more conservative approach than Kennedy. That does not mean that old precedents, like the Roe v. Wade abortion case from 1973, are likely to be overturned.[1] It is fairly rare that the Supreme Court actually rejects a decades-old precedent. But without overturning Roe, it could become easier for states to place some restrictions on the availability of abortions, with less fear of those limits being rejected by the court.

On most business issues, a Justice Kavanaugh may not be a major change from Justice Kennedy. In cases dealing with employment law, arbitration, antitrust law, and many regulatory matters, Kennedy usually sided with the conservative bloc of the court in reaching what was seen as a business-friendly result. For example, just this year, Kennedy was part of the five-justice majority finding that non-union government employees cannot be forced to pay dues to public sector unions.[2] That ruling was a major defeat for the labor movement.

Kavanaugh has compiled a similarly conservative voting record in his 12 years as a federal judge. Of course, the specific facts of any individual case before the court could cause an occasional aberration. But over time, Kavanaugh is likely to mirror the business-friendly approach of Kennedy on most business cases.

In fact, Kavanaugh might go even further than Kennedy on some business issues. For example, his prior opinions make him appear to be more strident than Kennedy in challenging the authority of the various administrative agencies that regulate business, and less likely to defer to the decisions of government regulators.

The National Federation of Independent Business, which advocates for small businesses, said this of Kavanaugh’s nomination: “Judge Kavanaugh…has ruled consistently against regulatory agencies whose interpretation of the law exceeds its statutory authority. Such a record helps to provide certainty for small business owners” against “unreasonable government regulations.”[3]

That could prove significant in the field of environmental regulation, where Kennedy occasionally voted with the liberal bloc of the court in upholding more environmental regulation. For example, in 2007, Kennedy was the fifth vote in deciding that the Environmental Protection Agency has the authority to regulate greenhouse gas emissions.[4]

By contrast, Kavanaugh has already drawn opposition from environmental groups such as the Natural Resources Defense Council. The NRDC’s president argues that Kavanaugh’s judicial record has “shown a clear and consistent bias in favor of corporate polluters at the expense of our people. His rulings have…undermined environmental and health protections Congress empowered federal agencies to enforce.”[5]

If the only issues on Kavanaugh’s nomination were academic training and legal ability, no one would question that he is highly qualified for the job. He is a graduate of Yale College and Yale Law School, and was a Supreme Court clerk to Justice Kennedy. He now serves on the prestigious and influential D.C. Circuit Court of Appeals, one step below the Supreme Court.

But whether right or wrong, Supreme Court nominations are not about qualifications alone. For many years now, they have been political battles as well. Thus Kavanaugh’s work in the 1990s in the office of Independent Counsel Kenneth Starr during the investigation of President Bill Clinton will also draw much scrutiny.

While some might wish that these were not partisan battles, ironically for Kavanaugh, it was a political fight over a failed Supreme Court nominee that left an opening for Kennedy’s appointment to the court. In 1987, President Reagan first nominated D.C. Circuit Court of Appeals Judge Robert Bork for the seat that Kennedy would ultimately hold. But the Senate rejected Bork on a 58-42 vote, in a battle so heated that people today still refer to court nominees as being “Borked.”[6]

Reagan’s next nominee for the seat, D.C. Circuit Court Judge Douglas Ginsburg, withdrew his nomination after admitting that he had occasionally smoked marijuana in prior years. Only then did Reagan turn to the far less controversial Kennedy to fill the Supreme Court vacancy. Kennedy was confirmed on a 97-0 vote in early 1988, making him the last Supreme Court justice to be confirmed unanimously.

A prime reason that these confirmation battles are so fierce is demonstrated by Kennedy’s longevity, as he remained on the Supreme Court for almost three decades after Reagan left the White House in early 1989. Assuming good health, any Trump-appointed justices could remain on the bench until perhaps 2050 or later. In 2050, Kavanaugh would be 85 years old—the same age as the court’s oldest member today, Justice Ruth Bader Ginsburg.

Moreover, the conservative bloc of the court today is generally younger than the liberal bloc. Chief Justice John Roberts, Clarence Thomas, Samuel Alito, and Gorsuch, considered to be the more conservative wing, have an average age of only 63, and Kavanaugh’s addition would lower that to 61. By contrast, the average age of the four more liberal justices (Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan) is nearly 72. That group includes the only two justices now in their 80s—Ginsburg and Breyer, who turned 80 in August.

Democrats fear that Trump might have an opportunity to name a replacement for one of those more liberal justices, and that could have even longer-lasting implications than Kavanaugh’s appointment. On the other hand, Republicans are salivating over the possibility of another appointment that would further tilt the court in a more conservative direction.

Though the fight over Kavanaugh’s confirmation is sure to be contentious and perhaps even ugly, it may be only a prelude. Both sides will also be preparing the battlefield for what could be an even fiercer political war over another Supreme Court vacancy in the years ahead.

References

[1] Roe v. Wade, 410 U.S. 113 (1973).

[2] Janus v. AFSCME Council 31, 138 S. Ct. 2448 (2018).

[3] National Federation of Independent Business, NFIB Welcomes SCOTUS Nominee, July 9, 2018, https://www.nfib.com/content/press-release/homepage/nfib-welcomes-scotus-nominee/

[4] Massachusetts v. EPA, 549 U.S. 497 (2007).

[5] Natural Resources Defense Council, NRDC: Kavanaugh is a Threat to our Environment and Health, Aug. 7, 2018, https://www.nrdc.org/media/2018/180807

[6] The Merriam-Webster dictionary lists “Bork” as a verb meaning “to attack or defeat (a nominee or candidate for public office) unfairly through an organized campaign of harsh public criticism or vilification.”

Author of the article
Larry Bumgardner, JD
Larry Bumgardner, JD
Larry Bumgardner, JD, is an associate professor of business law at Pepperdine Graziadio Business School. Previously, he served as executive director of the Ronald Reagan Presidential Foundation and the Reagan Center for Public Affairs in Simi Valley, California. A graduate of Vanderbilt University School of Law, he has also taught political science, public policy, and communications courses at Pepperdine.
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