As most of you know, President Trump has nominated Brett Kavanaugh to replace the retiring Anthony Kennedy as associate justice of the Supreme Court. As most of you also know, Mr. Trump’s nomination is required to be approved by the Senate. Presently, the GOP holds a slim 51-49 majority in the Senate. Due to this slim margin and the currently contentious political climate, such approval is far from certain.
Most Dem senators are opposed to Kavanaugh. They claim their opposition is based on concerns over Kavanaugh’s perceived positions on issues such as abortion and healthcare. In particular, they are concerned he will somehow become the swing vote that would enable the Court to overturn Roe v Wade, the decision which legalized abortions throughout the US. For example, Chuck Schumer has vowed to “fight this nomination with everything I’ve got.”
In actuality, most Dems would oppose any Trump nominee just because he or she was put forth by the President, whom they loath. Many of them, such as Nancy Pelosi and the aforementioned Chuck Schumer, have expressed strong opinions that the President should not put forth any nominee until after the midterm elections. There is no legal basis for this. They just hope that the Dems will gain a majority in the midterm elections and thus be able to block any nominee with whom they disagree, politically.
In my opinion, there are at least two GOP – Susan Collins, Me, and Lisa Murkowski, Alaska – and three Dem senators – Joe Manchin, W. Va, Heidi Heitkamp, ND, and Joe Donnelly, IN – that are swing votes. Collins and Murkowski have expressed vague concerns and want to conduct a “careful vetting” of Kavanaugh’s judicial record before voting. (I highly doubt the veracity of this reason since Kavanaugh was not a surprise pick, and his judicial record is both extensive and publicly available.) Manchin, Heitkamp and Donnelly are up for re-election in states that Mr. Trump carried decisively in 2016, and would be reluctant to have to explain to their constituents why they voted “nay.” Other “wafflers” in either party may surface as well.
The Court was established pursuant to Article 3 of the Constitution when the document was ratified in 1789. It was intended to operate as the third leg in the system of checks and balances that is the legal cornerstone of our system of government. It is intended to interpret the law, but only within the context of an actual case that has been brought before it.
Article 3 did not specify the number of justices. It merely stipulates that the Court consist of a chief justice and various associate justices. It provides for members to be nominated by the president and confirmed by the Senate. Once approved, they serve for life, but they can be impeached. In case you are wondering, one and only one justice has ever been impeached, Samuel Chase in 1804, but he was acquitted. Moreover, there is no mechanism for forcibly removing a justice who is ill or incapacitated and declines to resign. (Given the age of some current members, three are 70 or older, this may become significant, prospectively.) Currently, the Court consists of eight associate justices, but at various times in our history there have been as few as five and as many as ten.
The constitution provides that a president may fill a vacancy temporarily while the Senate is in recess. Any justice so-appointed must be approved by the Senate when it reconvenes. Historically, this has been a real rarity and very controversial even with respect to appointments to lower courts. Only 13 justices have received so-called “recess appointments” and none since the Eisenhower Administration. Can you imagine the furor if President Trump made such an appointment?
The Court first met on February 2, 1790. There were positions for six justices, but only five had been confirmed by that date. There were no cases before them. According to historian Fergus Bordewich, they “sat augustly before a throng of spectators and waited for something to happen. Nothing did.” So, after one week of inactivity the Court adjourned, and the justices went home.
The Court’s power of judicial review (interpreting laws) has become a well-settled power. We accept it as a “given.” But it was not always so. In fact, originally this power received little attention by the Founding Fathers, and the concept is not specifically mentioned in the constitution. It was not until 1803 in the landmark case, Marbury v Madison, that the court established this power when Chief Justice John Marshall opined that “the authority to interpret the law was the particular province of the courts.”
Over the years, as the country expanded and grew, Congress authorized additional justices to correspond with the increased number of judicial circuits. The maximum was ten in 1863. In 1869 Congress reduced the size to nine, where it has remained ever since. Some commentators have been advocating adding more justices for political reasons when, as and if a Dem wins the presidency. They want more liberal justices. This may sound absurd, but it has actually been tried once. FDR tried to expand the Court in 1937 in order to add justices who would support his “New Deal” initiatives, some of which had been struck down, but Congress did not approve his plan.
The constitution does not guarantee that a president will be able to appoint any justices, nor does it limit the number he or she may appoint. Throughout our history only four presidents have not had the opportunity to appoint at least one justice. Two of them – William Henry Harrison and Zachary Taylor – died in office after having served very abbreviated terms. The third, Andrew Johnson, was thwarted when Congress reduced the authorized size of the court. Jimmy Carter was the only president to serve a full term and not have the opportunity to appoint a justice.
The current court is extremely diverse with respect to gender, race, and religion. Three of the nine are women; one is African American, one is Hispanic; five are Catholic and three are Jewish. Politically it has been balanced, with most decisions 5-4, but if President Trump and the GOP have their way, that may change prospectively. Liberals won’t like it, but elections do have consequences.
Since the beginning of the republic politicians and legal scholars have debated whether the court should interpret the constitution strictly as written or allow for expansion of federal powers with the changing times. Some courts have adhered strictly to the Constitution; others, notably the “Warren Court” (1953-1969) have been very active in expanding the powers of the federal government. For example, it was during this time that the court mandated integration of public schools (Brown v Board of Education) and certain rights of a suspect under arrest (Miranda v Arizona).
Generally, conservatives favor a court that interprets the constitution strictly (as written), whereas liberals favor one that is more active and expands the powers of the federal government. I don’t view one philosophy as “right” and the other as “wrong.” Historically, whichever political party has been in power has been able to appoint justices whose philosophy was consistent with theirs.
Kavanaugh appears to be more of a strict constructionist. Liberals are not happy with the choice, but I have yet to see anyone argue that he is not highly qualified. Therefore, he should be confirmed, and I believe that, after a period of “breast-beating by some Dems, he will be.