Will Brett Kavanaugh be the key to Trump’s legacy?
WASHINGTON (BP) -- The retirement announcement of Associate Justice Anthony Kennedy quickly ushered in guessing games on whom President Trump would next nominate to the Supreme Court and how long Roe v. Wade and other rulings would survive.
Kennedy, long the high court's swing vote on controversial decisions, told Trump in a letter June 27 after the final opinions of the term were announced that his retirement as an associate justice would take effect July 31. He served 30 years on the court after his nomination by President Reagan and his Senate confirmation.
Trump commended Kennedy for his service and said a search for the next justice "will begin immediately." His nominee would come from a list of 25 names the White House released last November, he told reporters June 27.
The Senate will vote to confirm the nominee this fall, Majority Leader Mitch McConnell of Kentucky said from the floor June 28. Democrats and liberal advocacy organizations have already signaled they will fight any nominee from Trump's list.
While defenders of abortion rights and other causes predicted doom will ensue if another Trump nominee like Neil Gorsuch is confirmed, some evangelical and conservative leaders expressed hope for a type of justice who might be forthcoming without predicting who it would be.
"The present vacancy comes at a critical moment, as Christians increasingly find themselves having to defend the most basic of American freedoms in courts of law," said Andrew Walker.
"President Trump has an opportunity to nominate a jurist who sees his or her job as an opportunity to interpret the Constitution as it is, not as one wants it to be," Walker said in written comments. "Our country needs a judge on the Supreme Court, not someone who discovers illusory rights in it."
The Senate -- which changed its rules before approval of Gorsuch in 2017 -- requires only a majority vote to confirm a nominee to the Supreme Court. Republicans hold a 51-49 majority, with Vice President Mike Pence the tie-breaking vote if needed. Without any Democratic votes, they could confirm the nominee as long as they lose no more than one of their own party members.
Confirmation of a fifth conservative to the high court does not assure reversal of the 1973 Roe decision that legalized abortion throughout the country. Associate Justice Clarence Thomas is the only current member of the Supreme Court who has called for overturning Roe in a written opinion. The other conservatives are Chief Justice John Roberts and Associate Justices Samuel Alito and Gorsuch.
Evangelical Christian leaders embraced President Trump's nomination of federal appeals court judge Brett Kavanaugh July and called for his quick confirmation to the U.S. Supreme Court.
In his first 18 months in the White House, Trump already has had the opportunity to make two nominations to the high court. He nominated Neil Gorsuch in January 2017, and the U.S. Senate confirmed the federal appeals court judge in a 54-45 vote.
The focus of much of the battle over Kavanaugh's confirmation will be Roe v. Wade, the high court's 1973 opinion that struck down all state restrictions on abortion and legalized the lethal procedure throughout the country.
Southern Baptist Convention President J.D. Greear, both vice presidents and several former presidents signed onto a statement issued late Monday that backed Trump's nominee.
In their statement, the 39 signers said they believe the Bible "teaches that government is justly ordered when it exercises the proper authority delegated to it by God. This means ensuring the rule of law, administering justice fairly and impartially, protecting the God-given dignity of every human being, and safeguarding our constitutional liberties.
"Because of the great importance the Supreme Court plays in interpreting the Constitution, it is necessary that nominees be impartial and faithful to the Constitution as it is, not as he or she simply wishes it to be," the signers said, adding they believe Kavanaugh's judicial philosophy fulfills these "important criteria" and they will "pray and work for a quick confirmation process."
A judge on the D.C. Circuit Court for 12 years, Kavanaugh was nominated to that bench in 2003 by President George W. Bush but did not receive a confirmation vote for three years, when he was approved 57-36 by the Senate. Previously, his experience included time as a senior associate counsel and staff secretary for Bush, as well as a Supreme Court clerk for Kennedy (the judge whom he would replace)
Kavanaugh's record as an appellate judge appeared to receive favorable reviews from nearly all pro-life and religious freedom advocates with at least one exception. The American Family Association (AFA) announced its opposition July 10, with its president, Tim Wildmon, citing "problematic language" in several of Kavanaugh’s opinions. Hours later, Wildmon withdrew AFA’s opposition, at least for now. In an email alert, he said AFA would await confirmation hearings for clarification on its concerns after hearing from its supporters and listening to the nominee’s defenders in the pro-life movement.
-- In a concurring opinion in 2010, Kavanaugh said prayers at the presidential inauguration and the use of the oath "So help me God" do not violate the First Amendment clause prohibiting a government establishment of religion.
In introducing his nominee, Trump said Kavanaugh "has impeccable credentials, unsurpassed qualifications and a proven commitment to equal justice under the law. There is no one in America more qualified for this position, and no one more deserving."
When it was his turn, Kavanaugh told the White House audience his philosophy as a judge is "straightforward."
"A judge must be independent and must interpret the law, not make the law," he said. "A judge must interpret statutes as written. And a judge must interpret the Constitution as written, informed by history and tradition and precedent."
Sen. Charles Schumer, the Senate's Democratic leader, quickly declared his opposition to Kavanaugh.
Trump's selection "has put reproductive rights and freedoms and health care protections for millions of Americans on the judicial chopping block," Schumer said in a written statement late Monday. "I will oppose Judge Kavanaugh's nomination with everything I have, and I hope a bipartisan majority will do the same."
Republican Sen. Ben Sasse of Nebraska said on Twitter late Monday, "Brett Kavanaugh is a serious jurist known for careful deliberation. This doesn't matter to many on the left. Sadly, the Resistance is going to try to bork him by portraying him as a cross between Lex Luthor and Darth Vader."
"Bork" became a verb for the defamatory treatment of a nominee or candidate after Senate Democrats rejected President Reagan's nomination of D.C. Circuit Court Judge Robert Bork in 1987. Kennedy ultimately gained confirmation in Bork's place.
The Supreme Court's reign of social progressivism is hopefully coming to an end. Anyone in defense of the Permanent Things -- life, marriage, religious liberty -- should welcome the nomination of Judge Brett Kavanaugh.
Roe, Casey, Windsor, Obergefell -- these are just a few of the Supreme Court cases that have shaped America's moral conscience for decades.
In each instance, it was the Supreme Court, not the legislature, that was responsible for overseeing a legal regime that allows for unborn children to die by a doctor's hand and for marriage as a legal entity to be redefined. For decades, the dignity of life and the integrity of the natural family have been chipped away at by the Supreme Court, taking questions of deep moral concern from the hands of citizens and putting such deliberations into their own.
This has come to no small cost to America and Americans, as the instability of the American family lies at the center of what ails us culturally and economically. When the Supreme Court upholds the right of a woman to end a pregnancy, it sends the broader picture that unborn innocent life is of far less value than the Faustian ideal of human autonomy. When the Supreme Court undermines socially norming institutions such as the family, we ought not to be surprised by pathologies linked to family decline.
Not all of America's problems can be laid at the feet of the Supreme Court. To monocausally link all our nation's social ills to nine individuals is to give too much credit and too much moral agency to government. Still, the norms that communicate what America values have been mediated through, and reflected by the Supreme Court.
With an ostensibly conservative pick in Judge Brett Kavanaugh, social conservatives who are often treated as embarrassing cousins within the conservative family should view the current moment as an opportunity. It is an opportunity to reverse historic wrongs and injustices overseen by Supreme Court justices who acted as Philosopher-Kings instead of dispassionate interpreters of the Constitution. It is an opportunity to install a justice who understands the Constitution for what it is, not what he wants it to be.
We shouldn't assume that a conservative-leaning Supreme Court will ameliorate all of America's great ills. To do so would violate the vision for limited government and ascribe far too much power to a government entity to affect our lives. But the possibility of a return to a Supreme Court that does not attempt to engineer social policy provides the opportunity for social conservatives to go about their task more confident that legislatures acting through reason and debate can solve complex policy matters without defaulting to black-robed Philosopher-Kings.
And now, with a Supreme Court that is less inclined to see rights written with invisible ink in the Constitution that upends the natural truths of our social order, it is possible that social conservatism can once again be given the platform it deserves to see every American flourish.