By Jose Ivan Cazares
LOS ANGELES — Two USC professors believe Judge Brett Kavanaugh will be the next Supreme Court justice, replacing Justice Anthony Kennedy, because Democrats don’t have the numbers in the Senate to block President Donald Trump’s appointee.
Franita Tolson, a law professor at USC, said Kennedy has been criticized for retiring at a critical moment with midterm elections coming up in November. However, she also said she personally can’t fault him for choosing to retire and be with his family at the age of 80. She said the situation was inevitable since the conclusion of the 2016 election.
“Elections matter,” Tolson said. “People should have been motivated by this issue in 2016. There are a lot of people with my same political beliefs that didn’t vote. Obviously, a conservative president means conservative judicial appointees.”
Tolson added that considering the average age of current Supreme Court judges, it’s likely that Trump will have the opportunity to appoint at least one more justice.
Kavanaugh’s appointment, announced July 9, was immediately criticized by numerous Democrats in Congress. U.S. Rep. Karen Bass, D-South Los Angeles, released a statement via email July 9 calling Kavanaugh a disastrous nomination for the Supreme Court.
“After soliciting conservative interest groups for a list of judges who threaten legal precedent enforcing fair voting practices, protecting women’s reproductive rights, or even banning segregation, Donald Trump has selected the only candidate on the list who will do all of the above, in addition to defending the president from the Mueller investigation,” Bass said.
U.S. Sen. Kamala Harris, California’s junior senator, said she could not in good conscious vote for Kavanaugh. Citing the words “Equal justice under the law” that are found above the door to the entrance of the Supreme Court, Harris said: “Judge Brett Kavanaugh represents a direct and fundamental threat to that promise of equality and so I will oppose his nomination to the Supreme Court.
“Specifically, as a replacement for Justice Anthony Kennedy, his nomination presents an existential threat to the health care of hundreds of millions of Americans.”
Justice Kennedy, though recognized as a conservative, was also known as a swing justice for his willingness to vote differently than most conservatives on high-profile cases. Kennedy was a swing vote in Planned Parenthood v. Casey in 1992 when he voted to reaffirm Roe v. Wade in support of abortion rights. He also cast the deciding vote in Obergefell v. Hodges in 2015 when he voted in favor of same sex marriage.
Kavanaugh, a two-time Yale graduate, was a legal clerk under Kennedy from 1993 to 1994 and currently serves in the Court of Appeals of the District of Colombia. His opinions are generally considered to be in line with Republican philosophies.
He served in the administration of President George W. Bush, first as a White House counsel and later as staff secretary.
Having a long career means there is an equally long paper trail for critics to latch onto, and Kavanaugh’s history with the White House means critics of the second Bush administration will have a hard time trusting him.
Sam Erman, another law professor at USC who also clerked for Justice Kennedy, said he thinks most Republicans will support Kavanuagh.
Tolson said Kavanaugh will be scrutinized for his opinions, but added that Kavanaugh seemed to be arguing that a president shouldn’t be distracted by investigations that ordinary citizens are subject to while leaving impeachment on the table as a tool to check the president’s power.
“I don’t necessarily agree or disagree, but I don’t think he was saying the president is above the law,” Tolson said.
Both Tolson and Erman agreed that the Democrat’s numerical disadvantage in the Senate will make it extremely difficult for them to block the nomination.
“There is a long list of records and a lot of information to consider,” Erman said. “It’s not impossible for Democrats to block the nomination. However, it’s unlikely and the president will just pick someone else like Kavanaugh to fill the seat if that happens.”
Sen. Harris left no doubt as to her feelings about Kavanaugh.
“Judge Kavanaugh has consistently proven to be a conservative ideologue instead of a mainstream jurist,” she said. “As recently as last year, he disregarded Supreme Court precedent and opposed the health care rights of a vulnerable young woman. That ruling was overturned by a sitting of all the judges on his court. In 2015, Kavanaugh wrote that an employer, based on their personal beliefs, can deny their employee access to birth control coverage.”
“What [Republicans] are trying to do is consolidate power by picking someone before the midterm that will reliably vote conservative for the next 30, 40 years,” said Gloria J. Browne-Marshall, associate professor at the John Jay College of Criminal Justice and a U.S. Supreme Court correspondent.
Supreme Court justices serve for life after they are confirmed by the Senate and sworn into office, which means those who sit on the court can influence politics for decades.
With a Republican-controlled Senate, a conservative justice is practically guaranteed. However, there are Republicans such as Sen. Susan Collins, R-Maine, who have publicly stated that they would find it difficult to support someone who is openly against the ruling in Roe v. Wade.
In a case involving a pregnant teenage immigrant being detained, Kavanaugh sided with the minority who said she should not be allowed to have an abortion but was criticized for not taking a strong enough stance on the matter, according to some conservatives.
“The question is what it would take for Republicans to not support the nominee,” Browne-Marshall said.
“[Republicans] are strategic about how they punish politicians who step out of line.”
Tolson said Democrats will need to gain the support of senators like Collins to increase their chances of blocking Kavanaugh.
Tolson said Kavanaugh’s success will depend on his ability to answer questions regarding specific cases and issues. “This a chance for the opposition to bring up every political argument to the forefront and make their stances known,” she said. “It’s going to be like a political hot potato and it will be interesting to see how he responds.”
Erman said the Supreme Court’s opinions never stray far from public opinion or the general political consensus. “We are going to have a court that is to the right of public opinion,” he said. “The question is will public opinion swing to the right? Will the court take reasonable incremental steps, or will it move too fast and garner backlash from the public?”
Tolson said that if rumors are true, Kennedy had a major part in choosing his successor and added that it’s unlikely that Kennedy would have chosen someone who would overturn rulings made in cases such as Planned Parenthood v. Casey or Obergefell v. Hodges, which cemented his legacy on the court.
Citing the landmark ruling of Brown v. Board of Education in 1954, which helped end school segregation, Sen. Harris said, “That’s the power an individual Supreme Court justice holds. Those are the stakes of this nomination. We must demand a mainstream jurist worthy of our great country.”