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Supreme power
Understanding why Brett Kavanaugh’s appointment to the US Supreme Court was such a big deal, and will be so impactful
Now that his appointment made it through the firestorm, it’s instructive to note that Brett Kavanaugh will be the 14th US Supreme Court justice brought on board by a Republican president since the late 1960s: Richard Nixon appointed four, Gerald Ford one, Ronald Reagan three, George H.W. Bush two, George W. Bush two, and Trump two.
In that 50-year period, there were only three Democratic presidents, who appointed a total of four judges. Jimmy Carter didn’t appoint any, Bill Clinton appointed two and Barack Obama also two. This is the seemingly obvious and natural answer to the question of why the US Supreme Court is made up of judges who lean toward the Right.
In retrospect, the court could have been much more conservative than it actually is. A number of Republican presidents, however, appointed judges who were seemingly conservative, but in actuality turned out to be liberals. Nixon, for example, appointed Judge Harry Blackmun, who ended up being one of the most liberal justices on the court. The same happened with Judge John Paul Stevens, who was appointed by Ford. For a few years, Stevens voted with the conservatives, and then slowly he began drifting Left. By his retirement, he was considered far Left. The Stevens appointment was treated as a failure by the Republican Party from day one. His replacement, Judge Elena Kagan, was appointed by Barack Obama, who of course was eager to appoint another liberal to the Supreme Court.
A short explanation may be required here: The US Supreme Court is a court whose role is to interpret the Constitution, and its members are appointed by the president and approved by the Senate. Naturally, every president appoints judges whom he believes will interpret the Constitution in accordance with the president’s views, and the Senate makes an effort to block the appointment of anyone whose positions strongly contradict theirs. This leads to a power struggle with fixed components. If both the president and the Senate are from the same party, the appointment process is quicker and smoother, as it was for example during Bush Jr.’s term – John Roberts and Samuel Alito were clear-cut conservatives. However, when the president and the majority of senators are not from the same party, as was the case with Bush Sr., the nomination process becomes extremely difficult.
Bush Sr. succeeded in his nomination of Clarence Thomas, who has been the most conservative judge on the Supreme Court for the last 30 years, but failed with David Souter, who more often than not votes with the minority liberal contingent.
At the end of the day, it all comes down to politics. And accordingly, the public does not have much sympathy for the US Supreme Court
HERE’S THE reason why Trump and the Republican-controlled Senate were so anxious to complete the new Supreme Court justice nomination process before midterm elections, which could tilt the scales in the Senate. When the Senate majority is stable, the judges vote in accordance with their ideology. Clinton succeeded twice and Obama also succeeded twice. When there’s a hostile Senate, the president must compromise and oftentimes misses the mark. Nixon appointed four judges and only two of them ended up being staunch conservatives. Of the three judges appointed by Reagan, only one was a true conservative – Antonin Scalia – and Kavanaugh is his successor. Other than Thomas, Scalia has been the most conservative judge on the court over the last few decades. Scalia had a much more colorful, take-no-prisoners style than Thomas, and it’s no coincidence that Trump promised his voters that he would appoint a judge “like Scalia,” since he’s the ideal Republican role model.
According to his judicial record so far, Kavanaugh
comes across more similar to Thomas than to Scalia. He’s also beginning his term in much the same fashion as Thomas did, with complaints of shameful sexual misconduct. Thomas was approved by the Senate despite the sexual harassment complaint lodged by Anita Hill. In a similar fashion, Kavanaugh survived the claim of attempted rape made by Christine Blasey Ford. Thomas was approved by a narrow majority of 52 senators, and Kavanaugh was approved by an even narrower majority of 50 senators. Both of them share the record for the highest number of votes against a judge who was in the end approved: 48 senators. Only one judge has ever been appointed with a smaller margin, and this took place in 1881 (24 voted in favor, 23 against).
Nevertheless, there is a fundamental difference between the Thomas and Kavanaugh situations. In the Kavanaugh case, only two senators deviated from the party line. One was Republican Lisa Murkowski of Alaska, who voted against her own party. Perhaps she doesn’t intend to run for reelection or maybe she believes her constituency has only very short-term memory, and that by 2022 when her term ends, everyone will have forgotten how she voted. Trump even threatened her, saying that she “will never recover” politically from her vote. The second senator to vote against his party’s line was Democrat Joe Manchin. He’s up for reelection next month in West Virginia, an extremely conservative state that loves Trump. Voting against Kavanaugh would have been political suicide for Manchin, and it appears the senator was not ready to retire yet.
This was not the situation in the Thomas nomination. He was approved by a Senate that was controlled by the Democrats. That’s right – the most conservative judge was approved by a Democratic Senate. How did this happen? More than 10 Democratic senators decided to support him, including senators from Alabama, Georgia and Louisiana. Clarence Thomas might have been a conservative, but his skin was black, and so senators from states with heavy African-American constituencies didn’t dare to block the nomination of a person of color to the Supreme Court.
At the end of the day, it all comes down to politics. And so, accordingly, the public does not have much sympathy for the US Supreme Court. The last time positive poll ratings rose above 60% was over a decade ago. Since then, it’s been teetering around the 50% mark. Why is that? It’s not difficult to explain. In the last Gallup Poll, some 20% of respondents said that the Supreme Court is too liberal and 30% said it’s too conservative. Two years earlier (in other words, before Trump had nominated the first Supreme Court justice of his term), almost 40% of respondents had stated that the court was too liberal and 20% that it was too conservative. The percentage of Americans who think the court is ‘just right’ has remained fairly stable around the 40% mark. In other words, the majority of the population has consistently been dissatisfied.
With the recent addition of Kavanaugh, the US Supreme Court has taken a further step to the Right. If up until now Justice Anthony Kennedy had the reputation of being the “justice in the middle,” and was known to vote at times with the liberals and at others with the conservatives, this middle line has now been moved Right. The new middle line can be found with Justice Roberts, who was nominated by Bush Jr. Roberts rarely votes with the liberals, although as president of the court, his ideology might soften in the coming years since data show that conservative judges tend to become slightly more liberal as they age. Also, presidents have an interest in preserving the legitimacy of the court and therefore make an effort to refrain from appearing too partisan.
And yet, each justice has ideologies that are dear to them. There will always be issues that conservatives will have a hard time not voting in accordance with conservative beliefs. For example, it will become increasingly difficult now to limit the proliferation of weapons in the US, and the lines separating church and state might become less distinct. Bakeries that refuse to bake wedding cakes for single-sex ceremonies might get away with it more often, and affirmative action at universities which limit the number of Asian students in an effort to raise the number of Hispanic students might run into opposition in court. And of course, if all the (liberals’) fears come true, that means that the historic and controversial Roe v. Wade decision that allowed abortions – or more precisely, banned states from making abortions illegal – could be overturned.
In this context, too, we are dealing with a political issue. Repealing Roe v. Wade wouldn’t prevent women from having an abortion everywhere in the US, but it would make it more difficult. Some states will eliminate the availability completely while others will lesson restrictions. Mainly, this would be a convenient battle cry for religious conservatives and an opportunity for them to put a stop to abortions. It will also function as a call out to liberals to get out and vote so that their right to an abortion is not taken away from them. The Democrats are hoping that the new conservative Supreme Court will energize more frightened and frustrated women and get them to the voting polls on Election Day. The Republicans are hoping that the recent results will serve as proof to supporters that their votes have made a difference.
The Kavanaugh appointment is a great achievement for Trump, who has now appointed two justices in two years. This is an argument against those who say Trump talks a lot but does little. Moreover, the two most senior justices are liberals: Ruth Bader Ginsburg (85) and Stephen Breyer (80). Thomas is more than 10 years younger than Breyer, followed by Alito (12 years) and Roberts (17 years). Trump’s nominees - Neil Gorsuch and Brett Kavanaugh are 51 and 53 years old, respectively. Trump might still have the opportunity to appoint another one or two justices. If he remains in power another six years, the US Supreme Court will become conservative for decades to come and it will be most conservative court since the 1950s.