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10 September 2018

Five terrifying ways Brett Kavanaugh’s Supreme Court confirmation could impact the US

Trump’s second Supreme Court pick seems set for Senate confirmation. Here’s what that could mean.

By Nicky Woolf

After four days of intense hearings, Republicans are pushing ahead with their plan to ram the confirmation of Brett Kavanaugh, Trump’s second nominee to the Supreme Court, through the Senate. They’re doing this despite – or more likely because of – the upcoming midterm elections, which could threaten their razor-thin majority in the Senate.

The hypocrisy involved is nothing short of breath-taking. This is the same group of Senate Republicans who, under the guise of insisting that the voice of the American people be heard in the 2016 election, refused to even meet with Merrick Garland, the overwhelmingly qualified judge Barack Obama nominated to replace Antonin Scalia on the court.

“The American people are perfectly capable of having their say on this issue, so let’s give them a voice. Let’s let the American people decide,” was what the Republican senate majority leader Mitch McConnell said in March 2016.

If it wasn’t obvious that he was playing politics then – which it entirely was – then it’s abundantly so now. It is now September, much closer to another election and thus another opportunity for the American people to “have their say”, but now that a Republican is in the White House and is happy to outsource his judicial picks to the right-wing Federalist Society, McConnell and the GOP are singing from an entirely different hymn sheet.

The speed with which Republicans are acting in order to get Kavanaugh on the court before they risk losing their majority in November, despite it being entirely and visibly contradictory to their previous position when it was a Democrat in the White House doing the nomination, is pretty much unsurprising at this point. The Republicans are no longer interested in even the appearance of playing by the rules of democracy.

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Certainly, the fact that a trove of documents dumped on Senate Democrats just the night before the hearings began contain possible evidence that Kavanaugh had perjured himself didn’t affect the Republicans one bit.

The stakes could not be higher. Kavanaugh is set to replace justice Anthony Kennedy, who has long been the swing vote on the Court, meaning that the balance of American jurisprudence could dramatically shift with his appointment.

Here are a few of the things a conservative majority on America’s highest court might mean:

1) The end of a woman’s right to choose

Abortion in the US was made legal by a 1973 Supreme Court decision in a famous case called Roe vs Wade, which found that state laws criminalising access to abortions were unconstitutional. A conservative court could reverse that.

After meeting with Kavanaugh, Susan Collins, a moderate Republican senator from Maine who is thought of as one of two possible dissenting votes that might sink the confirmation over this issue (she has previously said that she would vote against a nominee who wants to overturn Roe vs Wade), said that she was satisfied with his position on the subject. But some of his answers to questions in his hearing last week throw serious doubt on that.

Collins, as well as Alaska’s Lisa Murkowski, has come under intense pressure from women’s rights groups to break with the GOP and block Kavanaugh’s nomination; activists even sent her 3,000 coat-hangers during the hearing as a symbol of the back-alley abortions that used to take place before Roe vs Wade. An August 21 poll by Public Policy Polling found that voting to confirm Kavanaugh could hit Collins support at home by as much as 16 points in the next election.

2) The end of the possibility of easy de-Trumpification

Because Supreme Court seats are lifetime appointments, a conservative majority on the court could have ramifications that far outlast the Trump administration itself. As columnist EJ Dionne noted in the Washington Post on Sunday, “if the Trump era produces a backlash so strong that a Democratic president and Congress pass breakthrough economic and social policies, conservatives will count on their court majority to block, dismantle or disable progressive initiatives.”

3) The end of hope to contain even some of the damage from Trump’s agenda

As FiveThirtyEight points out, Kennedy was hardly a staunch liberal: even before he announced his retirement, the Supreme Court had, with him as the deciding vote, saved Trump’s Muslim ban and upheld gerrymandering, and that was in this session alone. But he also wrote the majority opinion of the ruling which overturned the anti-gay Defence of Marriage Act, and has previously sided with the liberal justices on issues of marriage equality, abortion rights, and affirmative action. With another ideological conservative like Kavanaugh on the Supreme Court it is unlikely that judicial challenges to the Trump agenda will have much chance of succeeding.

4) The end of the Supreme Court’s reliability to fairly arbitrate a possible impeachment or 25th Amendment proceeding.

This is less likely, as impeachment itself is a purely legislative proceeding. Only the chief justice of the Supreme Court is involved, in as much as they act as the judge for the trial before the Senate, which would only happen following a successful series of votes to impeach in the House. But if in future, say if the investigation led by special counsel Robert Mueller into Russian interference in the 2016 presidential election shows evidence of collusion or other illegal behaviour on Trump’s part, it is possible that an effort to remove him using the 25th Amendment, which provides for situations where the president is unable to do the job, could fall to the Supreme Court for arbitration if Trump refuses to step down. More likely, and even more worrying, is:

5) The end of the Supreme Court as a check on executive powers.

During Watergate, President Nixon attempted to invoke executive privilege to avoid release of the tapes he had recorded of himself. Then, the Supreme Court ruled unanimously that Nixon had to surrender the recordings. That it was unanimous makes it a pretty tough precedent to overrule, but norms are falling like flies these days, and an executive-friendly conservative majority on the court could rule in Trump’s favour if he tried to invoke similar privilege with regard to, for example, a subpoena to the president from the Mueller investigation. In fact, Kavanaugh has previously argued that US vs Nixon was wrongly decided. A cynic might even suspect that might be why he was so high up Trump’s list of picks in the first place.

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