Picking his next Supreme Court justice Monday, July 9, 72-year-old Donald Trump looks poised to tilt the court in the conservative direction, following the retirement of swing-voting Associate Justice Anthony Kennedy July 30. With the late Associate Justice Antonin Scalia dying Feb. 13, 2016, Trump gets his second pick after getting Associate Justice Neil Gorsuch on the bench April 7, 2017. Democrats railed against Sen. Majority Leader Mitch McConnell for refusing to hold confirmation hearings for former President Barack Obama’s pick of Justice Merrick Garlands of D.C.’s Second Court of Appeals. McConnell wanted to let voters decide what to do with Obama’s pick after the Nov. 7, 2016 presidential election. When Trump won the election, he picked Gorsuch to replace Scalia. Trump now gets his second pick, promising to swing the court more to the right.
At the top of Trump’s short-list is Garland’s 53-year-old colleague on D.C.’s Second Court of Appeals Brett Kavanaugh, appointed in 2003 by former President George W. Bush. It took three years before Republicans finally got Kavanaugh confirmed over Democrat objections Feb. 12, 2006, saying he was too partisan and inexperienced but not now. Kavanugh has written some 286 opinions since 2006, making him the most prolific justice on the Second Circuit Court of Appeals. Raising red flags for two Republican senators, Sen. Lisa Murkowski (R-Ak.) and Susan Collins (R-Maine), Kavanaugh ruled on a three-judge panel that an immigrant teenager could not get an abortion, until his decision was overturned by the full court. Murkowski and Collins have said they would not vote for a judge that would consider overturning 1973 Roe v. Wade, legalizing abortion.
For Murkowski and Collins they’ll need to hear from Kavanaugh at confirmation hearings, should he get picked, that he respects legal precedents, especially when it comes to Roe v. Wade. When working for the Bush White House, Kavanaugh accepted the president power under Article 2 to suspend habeas corpus for Guantanamo Bay detainees. When the Supreme Court ruled that enemy combatants had a right to legal counsel, Kavanaugh showed little interest, deferring to Article 2. In 2009, Kavanaugh wrote an opinion about the Special Counsel law, essentially saying the president should be free from civil lawsuits, opposing the legal case against former President Bill Clinton in the Lewinsky sex scandal. Kavanaugh leans away from sitting president getting depositions on civil matters, a position which would have helped former President Bill Clinton.
Kavanaugh’s biggest rival is 46-year-old Indianapolis 7th District Court Judge Amy Coney Barrett. A former Notre Dame law professor, Barrett’s been questioned how much her Catholic views influence her judicial decisions. Collins and Murkowski will be most concerned about her views on Roe v. Wade, whether or not she considers it settled law. Barrett’s writings questions stare decisis, the legal doctrine respecting precedents. “There is little reason to think that reversals [of past decisions] would do much to damage” the High Court. “I tend to agree with those who say that a justice’s duty is to the Constitution,” opposed to legal precedents, something bound to cause problems for Murkowski and Collins. With the Senate closely divided, Trump can’t afford to lose one Republican vote, forcing him to pick a justice who won’t mess around with Roe v. Wade.—a concern of Murkowski and Collins.
Two other potential Supreme Court picks includes Michigan’s 51-year-old Raymond Kethledge, a 2008 Bush-43 appointee to Michigan’s Sixth Circuit Court of Appeals. Kethledge’s a favorite of the evangelical community, ruling against the IRS for the NorCal Tea Party Patriots. Democrats would view a Kethledge pick as a slap in the face because of his religious views. He’s ruled for the Border Patrol, using terms like “wets” and “tonks,” terms antagonizing the Latino community. Also in the running for Trump’s pick is 52-year-old Philadelphia’s Third Circuit Court Judge Thomas Hardiman who finished second in the running to Gorsuch in 2017. Appointed by Bush-43 in 2007, Hardiman is a strong Second Amendment gun rights advocate, bound to antagonize Senate Democrats, possibly Murkowski and Collins. Haridman was backed by Trump’s sister, Maryanne Trump Barry on the Philadelphia Circuit Court.
Trump’s likely to pick the person who follows in 81-year-old retiring Justice Anthony Kennedy’s footsteps. That gives the edge to Justice Amy Coney Barrett, who, despite her feelings about legal precedent, isn’t likely to reverse Roe v. Wade. Appointing Barrett would add another women to the High Court, making the split four-women, five men, something closer to today’s demographics. Kavanaugh’s recent ruling denying a immigrant teenager a right to abortion could lead Collins and Murkowski to have second thoughts, presenting problems for Trump. Because Democrats on the Senate Judiciary Committee tend to favor women, Trump would have an easier time getting Barrett through confirmation hearings. Given his reservations about the Special Counsel law, Democrats would be less inclined toward Kavanaugh, thinking he’d oppose Special Counsel Robert Mueller ongoing probe.
