The U.S. senate began confirmation hearings for Judge Brett M. Kavanaugh on 2018-SEP-04.
According to Adam Liptak writing for the New York Times:
"His confirmation would result in a rare replacement of the court’s swing justice, moving Chief Justice John G. Roberts Jr. — a much more reliably conservative vote than Justice Kennedy — to the court’s ideological center.
It has been more than 80 years since a chief justice was the swing vote. If Chief Justice Roberts assumes that position, legal scholars said, he will lead a solid five-member conservative majority that would most likely restrict access to abortion, limit the use of race-conscious decisions in areas like college admissions, uphold voting restrictions, expand gun rights, strike down campaign finance regulations, and give religion a greater role in public life. ..."
" 'Justice Kennedy’s departure is likely to lead to far more dramatic change in the court than the departure of Justice O’Connor did,' said Irv Gornstein, executive director of the Supreme Court Institute at Georgetown University.
Political science data on the justices’ past voting patterns confirm that analysis. 'The shift in the court’s center from Kennedy to Roberts is likely to be far more important than the 2006 shift from O’Connor to Kennedy,' Professor Epstein said. 'O’Connor and Kennedy were much closer, ideologically speaking, than Roberts and Kennedy'." 1
Professor Gornstein said.
"I would be somewhat surprised if any of the cases relating to affirmative action, abortion, same-sex marriage or the death penalty are flat out overruled. But it would not surprise me in the slightest if the court never upholds another affirmative action plan, never finds another restriction on abortion to impose an undue burden, never extends the rights of gays and lesbians beyond where they are now, and never again expands the category of persons who may not receive the death penalty." 1
I assume that his term "never again" really means "at least for many years." The average age of retirement for the past eleven retired justices is 80 years of age. 2 In 2018, Justice Ruth Bader Ginsburg is 85; Justice Stephen Breyer is 79; and Justice Clarence Thomas is 70. We can probably expect an opening to appear within the next few years. It might bring a new, liberal, justice into the High Court if it happens during the presidency of a Democrat.
Dean Erwin Chemerinsky, at the law school at the University of California, Berkeley, said:
"The key is, the many areas where Kennedy was with the liberals in 5-4 decisions: abortion, affirmative action, gay and lesbian rights, criminal punishments and allowing proof of discrimination based on disparate impact. In all of these areas of law, Kavanaugh replacing Kennedy likely will mean a significant change." 1
Sheryl Gay Stolberg, writing for the New York Times, said:
"The Trump White House, citing executive privilege, is withholding from the Senate more than 100,000 pages of records from Judge Brett M. Kavanaugh’s time as a lawyer in the administration of former President George W. Bush.
The decision ... comes just days before the start of Judge Kavanaugh’s Supreme Court confirmation hearings on Tuesday. It drew condemnation from Senator Chuck Schumer (D-NY), the Senate Minority Leader.
'We’re witnessing a Friday night document massacre. President Trump’s decision to step in at the last moment and hide 100k pages of Judge Kavanaugh’s records from the American public is not only unprecedented in the history of SCOTUS noms [sic], it has all the makings of a cover up'." 3
Andrew Kragie, writing for The Atlantic, said:
"His confirmation is not yet certain despite GOP control and the need for only a simple majority, thanks to last year’s expansion of the so-called nuclear option to prohibit filibusters for Supreme Court nominees. ..."
Senator Lindsey Graham (R-SC) said on Fox News Sunday that he expects Kavanaugh to get at least 55 votes “if he does well at the hearing,” predicting that “a handful of Democrats” would join Republicans." 4
A vote by 51 Senators in favor of Judge Kavanaugh would confirm as a High Court Justice. If 50 Senators voted in favor and 50 against, then Vice President Pence would break the tie, and probably admit him to the court.
At the hearing, Republicans listed Judge Kavanaugh's superb qualifications, including a Yale Law degree, and clerkship at the U.S. Supreme Court. Democrats concentrated on his record:
Senator Mazie K. Hirono, (D-HI) said: "Judge Kavanaugh has been knee deep in partisan politics."
Senator Chris Coons, (D-DE), said that the nominee had been involved in some of "of the most pitched and partisan battles of our lifetimes."
In his opening statement, Judge Kavanaugh said that he would model himself on Justice Kennedy, for whom he was once a law clerk. He said that he would be:
"... a neutral and impartial arbiter who favors no litigant or policy. ..."
"As Justice Kennedy showed us, a judge must be independent, not swayed by public pressure. Our independent judiciary is the crown jewel of our constitutional republic. In our independent judiciary, the Supreme Court is the last line of defense for the separation of powers, and the rights and liberties guaranteed by the Constitution." 5
2018-SEP-16: Accusations of sexual assault:
Earlier in the summer, Professor Christine Blasey Ford at Palo Alto University wrote a confidential letter to Senator Diane Feinstein (D-CA) that accused Judge Kavanaugh of sexually assaulting her in high school during the 1980's when he was 17 years of age. She confirmed on SEP-16 that she was the person who wrote the letter. She told the Washington Post that Kavanaugh allegedly:
"...pinned her to a bed on her back and groped her over her clothes, grinding his body against hers and clumsily attempting to pull off her one-piece bathing suit and the clothing she wore over it."
Kavanaugh has denied having any memory of this event, saying:
"I categorically and unequivocally deny this allegation. I did not do this back in high school or at any time."
When she tried to scream, Kavanaugh allegedly put his hand over her mouth.
She said that Mark Judge, a friend of Kavanaugh, was present during the alleged assault. However Mark has denied this.
Sixty-five women who say they knew Kavanaugh in high school have issued a letter that said, in part:
"Through the more than 35 years we have known him, Brett has stood out for his friendship, character, and integrity. ... in particular, he has always treated women with decency and respect. That was true when he was in high school, and it has remained true to this day."
Many of Kavanaugh’s former high school classmates are speaking out against these accusations. 6
Some Senators advocated that the decision on Kavanaugh's nomination be delayed until the alleged assault can be studied. On SEP-18, the Senate Judiciary Committee decided to delay the vote on Judge Kavanaugh's nomination. A public hearing was scheduled for SEP-24. 7
The following information sources were used to prepare and update the above
essay. The hyperlinks are not necessarily still active today.
Adam Liptak "How Brett Kavanaugh Would Transform the Supreme Court," New York Times, 2018-SEP-02, at: https://www.nytimes.com/
Sinéad Baker, ""Ruth Bader Ginsburg celebrates 25 years in the Supreme Court today — here's when she and her colleagues could retire," Business Insider, 2018-AUG-10, at: https://www.businessinsider.com/
Sheryl Gay Stolberg, "White House Withholds 100,000 Pages of Judge Brett Kavanaugh’s Records," The New York Times, 2018-EP-01, at: https://www.nytimes.com/
Andrew Kragie, "Kavanaugh Will Give Roe v. Wade ‘Deference’ but Could Vote to Overturn the Ruling," The Atlantic, 2018-SEP-03, at: https://www.theatlantic.com/
Sheryl Gay Stolberg and Adam Liptak, "Kavanaugh Portrayed as a Hopeless Partisan as Hearings on Supreme Court Nominee Open," New York Times, 2018-SEP-04, at: https://www.nytimes.com/