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Kavanaugh Column, News

The Road to the Supreme Court, Part I

Judge Kavanaugh’s nomination goes first to the Senate Judiciary Committee, which must refer his nomination by a straight up-and-down vote to the full Senate with a positive or negative recommendation or “no recommendation.” The Judiciary Committee, chaired by Sen. Charles Grassley (R-IA), will first review documents related to Kavanaugh’s career as a Bush Administration lawyer and federal appeals court judge. The volume of these documents may amount to millions of pages, and in fact, one of the strategies of liberal senators may be to maximize the number of pages asked for and thereby slow the nomination down. Senate Republicans, in turn, will be seeking to limit review only to those documents that Kavanaugh had substantive input into. Senate leadership have promised an expeditious hearing process, saying they hope to have a vote in the Judiciary Committee by the end of August and a vote by the full Senate by the end of September. That would enable Judge Kavanaugh to be seated on the Supreme Court before the first day of its new term, which begins on October 1st.

This hearing, perhaps more than in modern memory, will turn on two very different views of the proper role of a federal judge in deciding constitutional questions. Pro-abortion groups insist that the nomination will be about Roe v. Wade and “abortion rights,” but no recent nominee has actually testified before the Senate on what their views of that case would be if a similar case came before the Court. That is because judicial nominees are expected to demur on providing opinions on matters that could come before them, and the continued viability of the “fundamental right to abortion” certainly falls in that category. Therefore, both sides will be exploring whether Kavanaugh’s judicial philosophy holds clues to the way he might vote in sanctity of life cases. Here, he has demonstrated a commitment to reading the Constitution the way that it was intended to be read by its framers, and not according to his own views of what it should mean. This may subject him to criticism as a “judicial activist” who may upend Roe as “settled precedent,” but this criticism misses the point: Roe itself is a paramount example of “judicial activism,” a results-oriented decision that Justice Byron White, dissenting from the decision, called “a raw exercise of judicial power.” The “main event” of this nomination hearing, thus, is the expected exchange between senators who hold to the view that the Constitution is “evolving” and should be read to defend current values, on one hand, and Judge Kavanaugh and senators who care more about the meaning of the Constitution itself than about the gloss the Supreme Court has imposed on it through its various rulings over the years.

Because Republicans hold a majority of seats (11-10) on Judiciary, it would seem that, barring anything unforeseen, Judge Kavanaugh is likely to be referred to the Senate with approval. Once the full Senate takes up his nomination, Republicans hold a slim majority in the Senate. Presuming, as is likely, Sen. John McCain of Arizona is too ill to participate, Republicans control the Senate vote by a 50-49 margin. This means that if either of the abortion-affirming Republican senators (Susan Collins of Maine and Lisa Murkowski of Alaska) votes against the President’s nominee (something that hasn’t happened yet with any of Trump’s appeals court nominees), Kavanaugh will need to pick up support from an equal number of Democrats.

There is much we can all do to encourage the members of the Senate to confirm Judge Kavanaugh’s nomination. Tomorrow, we’ll discuss these strategies and provide resources to assist you in helping push Judge Kavanaugh’s nomination over the finish line.