Supreme Court Justice Anthony Kennedy announced his resignation last month, meaning that President Trump will have the opportunity to nominate a second justice to the Supreme Court.

Read our blog post: FAQ: How will President Trump appoint a Supreme Court Justice?

FAST FACTS

• President Trump selected Judge Brett Kavanaugh to become Associate Justice of the Supreme Court
• President announced Kavanaugh’s nomination on 9th July 2018, and he is awaiting confirmation by the US Senate
• Kavanaugh will replace Supreme Court Justice Anthony Kennedy
• Kennedy’s resignation comes into effect on 31st July 2018
• Kennedy has served on the Supreme Court for over 30 years

Read our blog post: SPOTLIGHT ON …. Supreme Court Justice Anthony Kennedy

Who is Brett Kavanaugh?

Brett Kavanaugh was born in 1965 in Washington DC, and spent most of his childhood in neighbouring Maryland. He was educated at Yale College and Yale Law School, before earning a one year fellowship with Solicitor General of the United States, Ken Starr. After this Kavanaugh clerked for Supreme Court Justice Anthony Kennedy (alongside Neil Gorsuch!), before returning to work with Ken Starr as Associate Counsel in the Office of the Independent Counsel. Whilst working for Starr, Kavanaugh was the principal author of the Starr Report to Congress on the Monica Lewinsky and Bill Clinton investigation, and argued for the impeachment of President Clinton. For a brief period Kavanaugh was a partner at law firm Kirkland and Ellis, before being appointed Associate White House Counsel between 2001 and 2003, where he worked on the Enron scandal, nomination of Chief Justice John Roberts, and unsuccessful nomination of Miguel Estrada. Between 2003 and 2006 George W Bush appointed Kavanaugh as Assistant to the President and White House Staff Secretary, where he was responsible for coordinating all correspondence and documentation to and from the president.

George W Bush appointed Kavanaugh to the United States Court of Appeals for the District of Columbia Circuit in 2003, but his confirmation stalled in the Senate for three years, facing opposition and criticism for being too partisan. He was eventually confirmed in 2006 by a vote of 57-36, and was sworn in by Supreme Court Justice Anthony Kennedy.

Refresh your knowledge with our Powerpoint: Who are the Supreme Court Justices and how are they appointed?

How has Kavanaugh ruled on cases?

Abortion

• considers Roe v Wade binding, but praised Justice Rehnquist for dissenting in the original case
• sees Planned Parenthood v Casey as precedent that needs to be followed

Healthcare

• dissented in Seven-Sky v Holder when circuit upheld the Patient Protection and Affordable Care Act (ACA) and again after Sissel v United States Department of Health and Human Services
• dissented when circuit refused to rehear claims by Preists For Life should be exempt from ACA’s contraceptive mandate under the Religious Freedom Restoration Act

National security

• dissented in Doe v Exxon (2007) when court found that American oil companies could be sued for human rights violations in Indonesia
• agreed that the Al-Shifa pharmaceutical company could not bring a defamation suit when the government alleged they were terrorists
• agreed in Klayman v Obama (2015) that the government’s bulk metadata collection was constitutional

Gun rights

• dissented when circuit found that new gun control measures enacted in response to DC v Heller (2008) did not violate the 2nd amendment (the Supreme Court, including Justice Anthony Kennedy later ruled that new gun control measures did violate the 2nd amendment, agreeing with Kavanaugh)
• dissented when circuit refused to rehear police officers’ claims of qualified immunity when arresting people at a party in an empty house (the Supreme Court unanimously reversed this in DC v Wesby (2018), again agreeing with Kavanaugh)

Why might his confirmation be problematic?

The Republicans currently hold a wafer thin majority of 51-49 in the Senate, meaning that any nomination and confirmation will be fraught with partisanship on both sides of the aisle, as well as potentially being a risk for the President. If President Trump fails to confirm his nominee, this may have repercussions in the November 2018 midterm elections and could potentially plague him the the 2020 presidential election.

Besides the narrow margin in the Senate, Kavanaugh’s initial confirmation by the Senate was not straight forward, and those concerns and criticisms will now surface again. Democratic Senators in 2003 accused Kavanaugh of being too partisan, and he even earned the moniker the “Forrest Gump of Republican politics”. This criticism from Democrats was enough for the American Bar Association, who had initially rated Kavanaugh as “well qualified” in 2003, to demote him to being rated as “qualified” in 2006. Divided opinions on Kavanugh’s qualities and abilities was also reflected in the vote to recommend Kavanaugh to the Senate by the Judiciary Committee, of 10-8 along party lines. This will raise the question as to how “qualified” Kavanaugh really is to sit on the highest court in the land, but will also mean this confirmation is likely to be heavily influenced by partisanship again.

Even after his confirmation, doubts about Kavanuagh resurfaced in 2007 when two Democratic Senators accused him of misleading the Senate Judiciary Committee when he denied being involved in the Bush administration’s detention and interrrogation policies after September 11th. It emerged that Kavanugh had met with other lawyers to discuss whether the Supreme Court would allow prisoners detained as ‘enemy combatants’ to be refused access to legal representation. Even though Kavanaugh denied this allegation at the time, it will undoubtedly resurface during his nomination and confirmation.

Since his nomination there has been a mixture of both support and opposition for Kavanaugh’s nomination, often from surprising sources. The majority of Republicans have expressed support for his nomination (in particular from Senate Majority Leader Mitch McConnell), and even a liberal professor from Yale Law School has perhaps surprisingly praised Kavanaugh as a lawyer, scholar and jurist.

It is unsurprising then, that most Democrat senators have expressed reservations or outright opposition to Kavanugh’s confirmation, in particular Senate Minority Leader Chuck Schumer. What perhaps is surprising is the opposition to Kavanaugh by social conservatives, including the American Family Association (a pressure group that opposes same-sex marriage, pornography and abortion) and March for Life (a group that organises an annual rally protesting the practice and legality of abortion), over fears that he is ‘not conservative enough’.

Kavanugh’s hearings will begin during September or October of 2018.

Revise the appointment and nomination process for Supreme Court Justices with our handout: How are Supreme Court Justices appointed?