President Donald Trump’s most recent nomination to the Supreme Court, Brett Kavanaugh, is likely to have a far greater impact on the direction of American society than his first appointment, according to Dan Urman, a Supreme Court expert at Northeastern.
Assuming Kavanaugh is confirmed—which Urman said is almost certain—his history of consistently conservative rulings is likely to cause sweeping changes in abortion rights, gun ownership, voting rights, and more.
Trump’s first appointment was essentially a swap between two conservative judges: Neil Gorsuch to replace the late Justice Antonin Scalia. But this time, the judge being replaced is Anthony Kennedy, a conservative who often provided the swing vote on hot-button social issues. Kennedy, appointed by President Ronald Reagan in 1987, frequently ruled with his more liberal colleagues on such issues as abortion, guns, voting rights, and the death penalty.
Kavanaugh’s appointment, according to Urman, will lead to a consistent 5-4 split favoring a conservative interpretation of the Constitution.
“We have never seen polarization creep into the judiciary at this level,” said Urman, who holds joint appointments in the School of Public Policy and Urban Affairs and the School of Law. “On the important issues, you’ll be able to say, ‘This is how the Republican appointees will vote on cases, and this is how the Democratic appointees will vote on cases.”
“For a president who wants to ‘drain the swamp,’ Kavanaugh is a very big swamp creature —a friendly one, but very much a part of the establishment.”
Kavanaugh was a surprise choice to many observers, because his long and varied service in the federal government will provide considerable ammunition for opponents determined to slow or derail the nomination.
“For a president who wants to ‘drain the swamp,’ Kavanaugh is a very big swamp creature —a friendly one, but very much a part of the establishment,” said Urman.
Urman believes that one issue that may have tipped the scales in favor of Kavanaugh was his 2009 article in the Minnesota Law Review. Almost a decade after writing portions of the Starr report for Clinton’s impeachment, Kavanaugh apparently had a change of heart.
In the 2009 article, Kavanaugh argued that sitting presidents should be exempt from criminal prosecutions and questioning by prosecutors. Trump is in this exact position, with criminal investigations underway and special prosecutor Robert Mueller trying to force Trump to be interviewed under oath.
“I think it’s likely that this was a strong check mark in his favor when he was considering the finalists,” said Urman. “If you are looking for someone who defers to executive power as a judge, then Brett Kavanaugh is a good pick.”
In addition to more than 300 decisions during his 12 years as a federal appellate court judge, Kavanaugh has spent more than three decades in the federal government, including stints as an aide to President George W. Bush and as a lawyer in the Justice Department.
Although he is praised for his legal expertise and personable demeanor, Kavanaugh has also played a key role in several controversial moments in recent political history.
He worked on Kenneth Starr’s investigation, which laid out broad grounds for Clinton’s 1998 impeachment. In 2000, Kavanaugh was one of the lawyers in Bush v. Gore, the court battle that handed George W. Bush a victory in Florida, securing his first term as president.
Senate Majority Leader Mitch McConnell recommended against nominating Kavanaugh because of his long track record in government. But Trump chose to ignore that advice.
The question going forward, Urman said, is how Kavanaugh’s appointment will affect Chief Justice John Roberts, who has been a consistent conservative vote on the court.
“Chief Justice Roberts really cares about the legitimacy of the Supreme Court,” said Urman. “He doesn’t want the public to perceive the court as five justices wearing red and four wearing blue. That probably influenced Roberts’ decision to uphold the constitutionality of the Affordable Care Act in 2012.”
Urman said it is possible that Roberts will try to slow down the speed of change by narrowing the rulings to very specific subsets of the issues as a way to moderate their broad impact.