Kavanaugh's inevitable confirmation

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(Editor's note: This piece was originally posted by the Government Affairs Institute on September 5, 2018.)

By Susan Sullivan Lagon

To no one’s surprise, the 176th nominee to the U.S. Supreme Court will likely soon become its 114th justice. Judge Brett Kavanaugh owes his nomination to President Donald Trump, but if confirmed, it will be thanks to former Senate Majority Leader Harry Reid (D-NV) and current Senate Majority Leader Mitch McConnell (R-KY). Lowering the cloture requirement for judicial nominations in the Senate has made confirmation a simple exercise in partisan politics. (For background, see here.)

Gone are the days when Justice Ruth Bader Ginsburg–arguably the most liberal member of the current Court–was approved 96-3 and the late Justice Antonin Scalia–the exemplar of conservative jurisprudence–was confirmed 98-0.  Even before the Senate’s rules changes, votes were getting closer. Justice Sonia Sotomayor was confirmed 68-31 and the vote for Justice Elena Kagan was 63-37. The Kavanaugh vote will probably mirror that of Trump’s first Supreme Court pick, Justice Neil Gorsuch. He was confirmed 54-45 in the first vote requiring just a simple majority, ushering in an era without any attempt at bipartisan consensus.

Political scientist Lee Epstein has observed the growing importance of party and ideology in federal judicial selection while noting that the ideological distance between Democrats and Republicans in the Senate is greater than at any time since Reconstruction. Among her findings: More than 75% of nominees shared their president’s ideology before they were appointed, 89% have come from the same party, and Senate majority parties have confirmed 83% of judicial nominees from their own party.  For those wondering how Kavanaugh might vote, Epstein’s research shows that Supreme Court justices vote with the President that nominated them an average of 65% of the time.

The composition of the federal bench is a president’s enduring legacy. Former President Barack Obama was able to install 329 federal judges during his two terms, leaving 9 of 13 U.S. (Circuit) Courts of Appeals with a majority of judges appointed by Democratic presidents. So far, Trump has nominated 99 judges to District Courts and 36 to the Circuit Courts. If Republicans retain their majority in the Senate, he is on course to replace almost a third of all active federal judges. He has already appointed more Circuit Court judges than any other recent presidents at this point in their terms.

Trump has outsourced the selection of judges to conservative groups such as the Federalist Society, even going so far as to announce a list of prospective picks during his campaign to reassure conservatives. His fellow Republicans have tolerated a growing list of constitutionally questionable actions and behavior once unthinkable for an occupant of the Oval Office.  Some feel this is in exchange for his making good on his promise to appoint judges willing to reconsider existing law on issues such as abortion, LGBT rights, affirmative action, environmental regulation, voting rights, due process for immigrants, policing practices, and a host of other issues.

Because the Supreme Court hears only about 80 cases a term, 99% of federal cases are settled at the lower courts. Trump has been strategic, concentrating first on Circuit Court appointments in states he won where a Democratic senator is up for reelection, for example, Pennsylvania, Michigan, and Indiana. Vulnerable Democratic senators in states that Trump won may well cross the aisle to approve Kavanaugh, just as three did with Gorsuch. Minority Leader Charles Schumer (D-NY) is unlikely to force them to walk the plank in the name of party unity.

The stakes are enormous. Any justice Trump appoints will tilt the balance of the Court by replacing Justice Anthony Kennedy, the pivot point for so many closely divided decisions. Decisions that had been 5:4 could go 4:5 the other way, just as they did when Justice Samuel Alito replaced Justice Sandra Day O’Connor.

There is no question that Kavanaugh, a veteran of the D.C. Circuit like Chief Justice John Roberts and Justices Ginsburg and Clarence Thomas, is well qualified. Any Republican president might have chosen him. But is it merely coincidental that he takes a very expansive view of executive power and prerogative? He served five years as White House Counsel and Staff Secretary in George W. Bush’s White House and is on record as opposing civil suits against– and criminal investigations of –sitting presidents, although he has stopped short of declaring them unconstitutional.

The obvious question asked at Kavanaugh’s Judiciary Committee hearing is whether President Trump would have to comply with a subpoena issued by Special Counsel Robert Mueller in the ongoing Russia probe. Judicial nominees have become experts at dodging hypothetical questions during hearings. Justices, however, might be asked to decide a real one soon.

Susan Sullivan Lagon is Nonresident Senior Fellow at GAI at Georgetown University and Historian at the Jefferson Hotel in Washington, D.C.