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UW professors weigh in on Judge Brett Kavanaugh’s nomination

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On Wednesday, June 27, Justice Anthony Kennedy, who served on the Supreme Court since 1988, announced his retirement, leaving an opening for President Donald Trump and the Republican-held U.S. Senate to tip the ideology of the Court markedly to the right.

Justice Kennedy, 81, had long served as the moderate swing-vote on the divided Court. His tenure is dotted with all-important, tie-breaking votes. In 2015, Kennedy wrote the majority opinion in Obergefell v. Hodges, holding that same-sex couples must be allowed to marry nationwide. Now, Chief Justice John Roberts, a George W. Bush appointee who is consistently more conservative in his rulings than Kennedy, will serve as the swing-vote.

Less than two weeks after Kennedy’s retirement, one of his former clerks, Judge Brett Kavanaugh of the District of Columbia Circuit Court, was nominated by Trump to fill the vacancy.

Kavanaugh, 53, has been a reliable conservative since landing on the D.C. Circuit in 2006 after a contentious three-year nomination process. Similar to Justice Antonin Scalia, whose seat was filled by Justice Neil Gorsuch after Scalia’s death in 2016, Kavanaugh reads legal matters through an originalist lens.

Originalism is a judicial philosophy that interprets the Constitution in the way the framers originally intended when they wrote and ratified the document, according to Jeff Feldman, a UW law professor and expert in constitutional law. Under this interpretation, the U.S. Constitution is stable, so it does not evolve over time.

Before assuming his position as a federal appellate judge, Kavanaugh served in a number of high-profile political positions.

He urged the impeachment of former President Bill Clinton in 1998 as an attorney working for independent counsel Ken Starr.

Despite his work on this investigation, Kavanaugh wrote in a 2009 law review article that presidents should not have to deal with the distractions that come from civil lawsuits or criminal investigations while in office. This opinion is believed to come under scrutiny during his confirmation hearings given that special counsel Robert Mueller is currently in talks with Trump’s lawyers to interview the president for his investigation into Russian interference in the 2016 presidential election. This issue could come before the Supreme Court if no resolution is found.

Kavanaugh also worked for the Bush campaign’s successful recount effort in Florida. Once former President George W. Bush assumed office in 2001, Kavanaugh worked as Senior Associate Counsel and Associate Counsel to the President. In 2003, he was promoted and became Assistant to the President and White House Staff Secretary.

The vulnerability of the Supreme Court’s 1973 ruling in Roe v. Wade, which held that restrictions to abortion by states was unconstitutional, will likely receive most of the attention during the upcoming confirmation process.

In a case that came before his court last year regarding a pregnant immigrant teen in federal custody, Kavanaugh wrote in his dissent that his fellow judges had created “a new right for unlawful immigrant minors in U.S. government detention to obtain immediate abortion on demand.”

During his confirmation hearing in 2006, Kavanaugh said that he accepted Roe as precedent.

However, Supreme Court justices are not bound by precedent the way lower-court judges are. This means that Kavanaugh could vote to see the case and its reaffirmation in Planned Parenthood v. Casey in 1992 as wrongly decided, allowing him to overturn the 45-year-old decision.

“This appointment is likely to tip the court in an ideological direction for many years to come,” Feldman said. “The court will decide cases raising critical issues in the years to come, like reproductive rights, death penalty limitations, the reach of executive power, and affirmative action, along with many others, and their resolution unquestionably will have significant impact.”

Lisa Manheim, a UW law professor and U.S. Supreme Court expert, noted that since Trump has had the opportunity to appoint two Supreme Court justices in as many years in office, it reaffirms the significance of elections.

“When you vote in an election, in a sense, you’re voting for the type of justice or the type of judge that’s going to be appointed to both the Supreme Court and the lower courts,” Manheim said. “The confirmation process underscores, in my mind, the importance of voting.”

If Kavanaugh serves until he is 85, the current age of eldest Justice Ruth Bader Ginsburg, he will be making decisions on the highest court in the country for the next 32 years.

Reach reporter Jake Goldstein-Street at Twitter: @GoldsteinStreet

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