Opinion Contributor on Supreme Court nominee Brett Kavanaugh and the powers of the President to nominate justices.
Almost immediately after President Trump announced his nomination of Brett Kavanaugh, a District of Columbia Court of Appeals judge, to fill the U.S. Supreme Court vacancy created by Justice Anthony Kennedy’s retirement, a vitriolic battle to keep the Senate from confirming Kavanaugh began to take shape.
Judicial appointment is one of the most important powers of the president under the U.S. Constitution. And it is within the president’s purview to select judges who reflect their own views. If Justice Antonin Scalia exemplified President Reagan’s conservative values, President Obama’s choice of Justice Sonia Sotomayor represents the liberal side. President Trump — like President George W. Bush before him — promised in his campaign to appoint conservative judges who would interpret the Constitution in a textual and literal manner. Their Republican base believes that activist liberal judges have exceeded the text of the Constitution and violated the intentions of the Founding Fathers with issues such as affirmative action, gender equality and same-sex marriage.
Of particular importance in this instance, Democrats fear that adding another conservative judge will lead the court to overrule the landmark 1973 Roe v. Wade decision on abortion. Judge Kavanaugh’s personal stance on abortion is difficult to determine; in his 2006 confirmation hearing for the appeals court, he simply noted that the Supreme Court has upheld Roe. Its original decision was affirmed by another important case for abortion rights — Planned Parenthood of Southeastern Pennsylvania v. Casey — in which the majority held that “it is a constitutional liberty of the woman to have some freedom to terminate her pregnancy.”
Crucially, Casey narrowed Roe by rejecting its trimester framework and said that the state can regulate abortions as long as it doesn’t impose undue burdens on the woman’s right. The court said that “a line should be drawn at viability, so that, before that time, the woman has a right to choose to terminate her pregnancy.” The justices explained the viability of the fetus as “the time at which there is a realistic possibility of maintaining and nourishing a life outside the womb, so that the independent existence of the second life can, in reason and all fairness, be the object of state protection that now overrides the rights of the woman.”
Now, the right to an abortion is guaranteed to be central to the fight by congressional Democrats over the confirmation of Judge Kavanaugh, a former altar boy. Given how emotive this subject is, and the general climate of anger in America, this confirmation process — always high on theatrics — may mark a historic low.
Aside from the failed 1987 nomination of Judge Robert Bork, the lowest point perhaps was reached during the 1991 confirmation of Justice Clarence Thomas, a bruising process that Thomas described thusly in his opening statement: “This is a circus. … It is a high-tech lynching for uppity blacks who in any way deign to think for themselves, to do for themselves, to have different ideas, and it is a message that unless you kowtow to an old order, this is what will happen to you. You will be lynched, destroyed, caricatured.” He continues to warn about the process today.
Indeed, the Founding Fathers would be surprised by the brouhaha over judicial appointments. In Federalist 78, for example, Alexander Hamilton wrote: “The judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. …[It] has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment.”
Even if the court no longer is the “weakest of the three departments of power,” Kavanaugh’s appointment may not signify the end of women’s rights. This court is unlikely to overturn Roe v. Wade.
As the majority wrote in Casey, the Supreme Court “cannot buy support for its decisions by spending money, and, except to a minor degree, it cannot independently coerce obedience to its decrees. The court’s power lies, rather, in its legitimacy, a product of substance and perception that shows itself in the people’s acceptance of the judiciary as fit to determine what the nation’s law means, and to declare what it demands.”
That opinion also gives insight into how politically conscious the court is when making decisions on culture wars: “The court’s legitimacy depends on making legally principled decisions under circumstances in which their principled character is sufficiently plausible to be accepted by the nation.”
Simply put, the court knows the American public does not support overruling Roe. After Kennedy’s announced retirement, a Kaiser Family Foundation poll found that 67 percent of Americans want the decision to stand; a 2017 poll by Pew Research Center similarly found that 69 percent of respondents opposed overturning Roe v. Wade. And Gallup reported in a June 2018 poll that exactly 48 percent of Americans are either pro-choice or pro-life, cleft into opposing camps. One in two Americans believe abortion should be legal in “some circumstances.”
With a clearly divided populace, a Justice Kavanaugh would be sensible, unlikely to pander to the fringe and call into question the court’s legitimacy. So for now, abortion rights and same-sex marriage are likely to remain secure. This confirmation process needs light, but less heat. And Democrats should keep in mind that nothing energizes the Republican base like a Supreme Court appointment.
Sandeep Gopalan is a professor of law and pro vice chancellor for academic innovation at Deakin University in Melbourne, Australia. He previously was co-chairman or vice chairman of American Bar Association committees on aerospace/defense and international transactions, a member of the ABA’s immigration commission, and dean of three law schools in Ireland and Australia. He has taught law in four countries and served as a visiting scholar at universities in France and Germany.