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2018-JUL:

President Trump's administration:

President Trump nominates Brett
Kavanaugh, of the DC Circuit Court.
Impact of Kavanaugh's nomination.

Part 23
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This topic is continued here from the previous essay.

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2018-JUL-05: President Trump had reduced the list to three -- and then to one candidate -- to replace retiring Justice Kennedy:

President Trump told reporters on Air Force One that he had narrowed his list of potential candidates to three. An anonymous individual has said that they are all judges on federal Courts of Appeal: Amy Coney Barrett, 46, from the 6th Circuit Court; Brett Kavanaugh, 53, from the District of Columbia Circuit; and Raymond Kethledge, 51 from the Sixth Circuit. 1

The new Justice of the Supreme Court may affect the philosophy of the court for three decades, until the mid-21st century. President Trump allegedly selected nominees from a list prepared by the Heritage Foundation, and V.P. Leonard Leo of the Federalist Society -- two very conservative groups. He was also advised by White House counsel Don McGahn. 2

He revealed his final selection on the evening of JUL-09 to be Brett Kavanaugh, 53. 3

The President said:

"What matters is not a judge's political views, but whether they can set aside those views to do what the law and the Constitution require. I am pleased to say I have found without doubt such a person. ... [He is] one of the finest and sharpest legal minds of our time. ... [he is] "... considered a judge's judge and a true thought leader among his peers." 3

President Trump did not include what some commentators feel should be the main factor involving the choice of a new Justice. That is, what is the candidate's belief about the fundamental nature of the Constitution. There are two main alternatives:

  1. A conservative view: It is a fixed document that is to be interpreted according to what its authors believed when they wrote it, centuries ago, That is, its meaning is fixed.

  2. A liberal view: It is a living document that is to be interpreted according to how the culture has changed down through the centuries until today.

For example, centuries ago, same-gender sexual activity was regarded as a freely chosen behavior and a crime worthy of the death penalty. In support of this view, many Christians at that time followed biblical passages that they interpreted as referring to homosexual activity and calling for the death penalty. Over time, studies have revealed that a homosexual orientation is pre-determined before a person's birth by an epigenetic layer on top of their DNA. It is unchosen, fixed, and unchangeable for the rest of their life. Partly in response to these findings, polls show that support for the legalization of same-gender sexual activity has been increasing for years and reached 72% in 2017. Similarly, support for gay marriages is steadily increasing and reached 64%% in 2017.

Judge Kavanaugh is a Roman Catholic who serves as a regular lector at the Shrine of the Most Blessed Sacrament in Washington, DC. If confirmed as a Justice of the High Court, the court would consist of five Roman Catholics, one Justice who was raised Catholic but now attends an Episcopal Church, and three Jewish justices. There are no Protestants, or NOTAs (religiously unaffiliated) Justices. 3 The first and second largest single religious groups in the U.S., the Protestants and the NOTAs, are not represented on the court.

Senator Richard Blumenthal (D,CT) tweeted:

"Judge Kavanaugh’s record & writings signal an extreme hostility to the precious rights & liberties that make our nation great. He's passed the Trump litmus test --screened & vetted by extreme right-wing groups that have made this president their puppet." 4

The senator referred to the list of potential Justices provided to the President as a: "... group of right-wing fringe ideologues." 5

Eric Bradner, writing for CNN Politics, said that Judge Kavanaugh has:

"... spent 12 years on the US Court of Appeals for the District of Columbia Circuit, where his record would place him to Kennedy's right and more in ideological sync with Justice Samuel Alito, who has been a reliable conservative vote on the court.

Senate Majority Leader, Mitch McConnell (R-KY), plans to confirm Kavanaugh before the mid term elections. Senator Richard Blumenthal opposes this option. He said:

"A decision of this historic magnitude requires a lot of deliberate consideration, more than the few months we have before this election."

The Senate currently consists of 51 Republicans and 49 Democrats. If one Republican joins with all of the Democrats, and votes against the President's nominee, Vice President Mike Pence would presumably break the tie in favor of the nominee. It two or more Republicans break ranks, the nominee might be defeated.

Depending upon who is confirmed to the Supreme Court, Democrats have expressed concern that some past major decisions by the Court might be reversed in the future. Two earlier rulings that are perceived to be under major threat are:

  • Roe v. Wade, legalized early abortions on request throughout the U.S., and made later abortions available under restrictions that increase as a pregnancy advances. The Center for Reproductive Rights, a pro-choice group, issued a report titled: "What if Roe Fell?" 6 They concluded that if the U.S. Supreme Court overturned Roe v. Wade, then
    • in 22 states, the right to abortion is at the highest risk of loss; these states could ban abortion outright. These states are mainly in the center and south of the U.S.

    • In 7 states and the District of Columbia, the right to abortion is at some risk of loss, and

    • in 21 states, the right to abortion appears secure.

  • Obergefell v. Hodges, which allowed same-sex couples to marry throughout the U.S. (with the exception of one out of six territories: American Samoa).

In addition, the constitutionality of the

  • Affordable Care Act might be threatened.

Following the nomination, Senate Minority Leader Chuck Schumer (D) issued a statement, saying that the selection of Judge Kavanaugh:

"... has put reproductive rights and freedoms and health care protections for millions of Americans on the judicial chopping block. ... This nomination could alter the balance of the court in favor of powerful special interests and against working families for a generation, and would take away labor, civil, and human rights from millions of Americans. We cannot let that happen." 3

Typically, discussion of the suitability of a new Justice for the U.S. Supreme Court involves discussions of their educational background, legal history, their experience as a judge, etc. This is not critical because most candidates already have a extensive education and a long professional life working at one or more federal Courts of Appeal. What is really needed is a determination of the appointed person's beliefs on key legal/freedom matters of the day, like:

  • Whether the U.S. Constitution denies or permits women to choose to have an abortion, and if so, under what conditions.

  • Whether the institution of marriage should extend to all loving, committed couples, or be restricted to spouses of opposite genders.

  • Whether transgender persons, whose current gender identity differs from their birth-identified gender, should be considered as merely "gender confused" in need of counseling, or should have their current gender identity recognized as valid.

Unfortunately, although these questions are absolutely critical to decide whether the nominee will attempt to overturn recent human rights decisions by the Court, this type of question is almost never asked of candidates.

Most Republicans, evangelical Christians, and other conservatives are enthusiastic over the nomination of Judge Kavanaugh because of his conservative judicial history. Most Democratic Senators and many liberal advocacy groups are concerned about future threats to women's rights, labor unions, civil rights generally, gun control legislation, and state legislation designed to prevent racial minorities from being able to vote.

One exception to the evangelical Christian trend is Jonathan Wilson-Hartgrove, a Baptist minister in Durham, NC. who opposes Judge Kavanaugh's nomination. Wilson-Hartgrove regards the nomination as "a threat to the Christian ethic we are called to preach and pursue in public life." He wrote an article in the New York Times, saying:

"Leading the evangelical challenge to an extreme conservative majority on the Supreme Court, a group of evangelical women has issued a 'call to pause,' asking fellow believers to step back from the rhetoric of 'life' to examine how decisions before the court would impact the vulnerable people we claim to care about, even the unborn. 'The way to reduce abortion is not through escalating culture wars but by reducing poverty,' they argue, noting studies that show abortion rates at an all-time low, though they remain highest among poor women who lack access to health care.

He is apparently referring to a campaign created by Lisa Sharon Harper, founder of Freedom Road. a group of female and male pro-life evangelical Christians. 7,8

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This topic continues in the next essay

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References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. Catherine Lucedy & Lisa Mascaro, "Trump closes in on Supreme Court pick; 3 judges top list," Associated Press, 2018-JUL-05, at: https://apnews.com/
  2. Abby Vesoulis & Abigail Simon, "Legal Experts Say President Trump's Supreme Court Pick Reflects GOP Mainstream," Time, 2018-JUL-10, at: http://time.com/
  3. Eric Bradner, "Trump picks Brett Kavanaugh for Supreme Court," CNN Politics, 2018-JUL-09, at: https://www.cnn.com/
  4. Senator Blumenthal‏'s tweet was on 2019-JUL-09, at: https://twitter.com/
  5. Bradford Richardson, "Richard Blumenthal: Trump 'outsourced' Supreme Court pick to Federalist Society, Heritage Foundation," The Washington Times, 2018-JUL-08, at: https://www.washingtontimes.com/
  6. "What if Roe Fell?," Center for Reproductive Rights, 2018, at: https://www.reproductiverights.org/
  7. Freedom Road's home page is at: https://freedomroad.us/
  8. "The #PledgetoPause Toolkit is Here! ," Freedom Road, 2018-JUL-25, at: https://freedomroad.us/

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Original posting: 2018-JUL-06
Latest update:
2018-SEP-29
Author: B.A. Robinson

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