And now it begins. This country is no stranger to the Senate confirmation process for U.S. Supreme Court justices. A senator once described the process as a “kabuki” dance. But this time, the dance comes with a twist.
Justice Anthony Kennedy, who retires at the end of this month, became the center of the court after Justice Sandra Day O’Connor, who occupied that position more fully, left the court in early 2006. What happened after O’Connor left and Justice Samuel Alito Jr. took her seat is a window into why filling the Kennedy seat will be a high-stakes battle.
A little over a year after Alito joined the court, a headline on a The New York Times article declared “The New 5-4 Supreme Court.” With Alito’s vote, the court’s conservative majority began to reverse course in areas where O’Connor had made the difference. For example:
- The 5-4 majority upheld the federal Partial-Birth Abortion ban, a law nearly identical to a Nebraska law that O’Connor, along with the court’s liberal wing, had struck down earlier.
- With O’Connor, the court declined to hear a Massachusetts case challenging the use of race in assigning students to oversubscribed public schools. There was no conflict among the lower courts and no apparent reason for the justices to get involved. Again, nearly identical challenges from Seattle and Louisville arrived and shortly after Connor left and Alito arrived, the court agreed to hear and decide those school desegregation challenges.
- In 2003, O’Connor had been key to the 5-4 decision upholding the McCain-Feingold campaign finance reform law, including its restrictions on corporate spending. After her departure, the five-justice conservative majority began whittling away at the law, with the major blow delivered in 2010 in Citizens United v. FEC.
There are other areas, such as affirmative action, where the more conservative Alito changed the court’s and O’Connor’s course. Whether the changes were good or bad, depends, of course, on your perspective. But they do show why replacing the “center” of the court ignites the warring passions of political and special interest groups with their own agendas.
Which brings us to President Trump’s nominee Judge Brett Kavanaugh to succeed retiring Justice Kennedy. At the court’s center as the “swing” justice, Kennedy never swung as far or as often as O’Connor. But since her departure, he has been key to more liberal majorities in religion, race, abortion, death penalty, LGBT rights, prison conditions and other areas.
Adam Feldman, who conducts empirical research about the Supreme Court and shares his findings on his blog, empiricalscotus.com, recently revealed areas where Kavanaugh, assuming, as many do, he is more conservative than Kennedy, could move the court farther to the right. He bases that on a comparison of Kennedy opinions to Kavanaugh opinions on similar issues.
Feldman finds Kavanaugh more conservative on prisoners’ use of habeas corpus to challenge their convictions and sentences, judges’ discretion in criminal sentencing, Fourth Amendment search and seizures, and due process and equal protection rights.
“Judge Kavanaugh also appears to favor originalist principles more than Kennedy did,” wrote Feldman. “This would likely put him at odds with Kennedy’s pragmatic approach in cases like Obergefell.” The Obergefell case was Kennedy’s majority decision holding that same-sex couples have a right to marry.
Feldman is right that presidents have not always appointed justices who turned out to be exactly what that president thought and hoped the justice would be. Republican presidents have appointed more liberal justices, such as Earl Warren, William Brennan, John Paul Stevens and David Souter.
But the nomination process today has been refined into almost a science. And when a special interest organization, such as the conservative Federalist Society, presents a list of carefully vetted potential nominees to a president who commits to choosing from it — as President Trump did in choosing Justice Neil Gorsuch and Kavanaugh — there may be few surprises.
Based on the experience with Alito and the many close issues headed to the Supreme Court sooner rather than later, if Kavanaugh is confirmed, all of us are likely to discover how much farther and how fast his appointment will move the court rightward and what will remain of the Kennedy legacy.