When judgeanthonykennedy announced that he was about to retire from the US supreme Court less than a month ago, president Donald Trump saw an opportunity to offer conservatives the dream of a lifetime: to take advantage of this forced substitution to turn the supreme on the right in a way so marked as it had not seen since the 30’s.
The first step was taken Monday night with the appointment of brettkavanaugh , a 53-year-old judge created in a conservativejudges’ incubator launched in the late 1980s, thrown into the limelight during the impeachment process of president Bill Clinton and supported by supporters of gun ownership and the fight against abortion.
The second step is more complicated because it does not depend only on the White House. As the nomination has to be confirmed by the Senate, and since the Republican party has only 50 senators to vote (due to John McCain’s absence due to illness), against 49 of the Democratic party, Trump’s announcement also marked the start of a race against time. If Republicans can not be organized by November, and if Democrats regain a majority in the Senate in this month’s election, the conservatives’ dream may be postponed.
A serious conservative
On Monday night, during judgekavanaugh’s live broadcast across the country , from the largest room in the White House, Donald Trump recalled one of the few predecessors he used to point out as an example, saying his choice regards “the legacy of president Reagan. ”
“I do not ask questions about the personal opinions of a nominee. What matters is not the political opinion of a judge, but rather if he can put that opinion aside to do what the law and the Constitution require. to say, without any doubt, that I met such a person. ”
When he took the floor, judgebrett Kavanugh praised his predecessor, anthonykennedy, and strove to present himself as a man who respected diversity. He recalled that his mother, Martha kavanaugh, was a teacher at two “African-American majority” public schools in the 1960s and 1970s; said that, as a judge, most of her assistants “have been women”; and thanked the rector who hired him to teach at Harvard Law School: Elena Kagan, a supreme Court Justice appointed by president Barack Obama in 2010.
But kavanaugh’s curriculum lacks presentations, both for his advocates and his critics. In the last two decades, this US-born judge has left behind him a mountain of decisions that define him as being much more conservative than the man he will replace. anthonykennedy was nominated by Reagan in 1987 as a conservative but fled to the center and eventually took the role of arbiter between the four more conservative colleagues and the other four more liberal.
With kennedy’s departure and kavanaugh’s entry (if the Senate confirms the nomination), the supreme ceases to rely on kennedy’s centrism on issues such as abortion, gay marriage , the death penalty, or what remains of the discrimination. This balance was shaken by judge Neil Gorsuch’s appointment last year after Antonin Scalia’s death , and may even collapse if kavanaugh is confirmed – Gorsuch replaces an equally conservativejudge, who has kept his balance, but kavanaugh will replace a longer judge to the center, which unbalances the balance to the side of the conservatives.
Although nominated by a conservativepresident, anthonykennedy became instrumental in maintaining the right to abortion as a national law in 1992 and to the decision that the right to marriage extends to same-sex couples in 2015 “In the same year, he once again joined his fellow Liberals in criticizing solitary confinement , and on other occasions helped approve restrictions on the death penalty.
Decisions by his replacement, brettkavanaugh, on abortion cases, for example, are seen by the Democratic party as signs that the Trump-appointed judge will ally himself with his four conservative colleagues to reverse – or empty – legalization of abortion. Last year, kavanaugh denied a teenage immigrant’s request for an abortion, but the arguments he used also left conservatives a little uneasy – unlike other conservative colleagues who participated in the same ruling, kavanaugh did not say that the teenage immigrant does not have the constitutional right to terminate the pregnancy.
It is hard to say whether major decisions about abortion, same-sex marriage or other issues that have divided conservatives and liberals will return to the supreme, but it is almost certain that the various interest groups will fight for parts of those laws to be reassessed – leaving them emptied and in practice ineffective.
Against White House investigations
And there is another aspect that leads the Democratic party to want to bar kavanaugh’s appointment with all his might. Despite being a leading reporter for the famous Starr report, which led to the impeachment of president Bill Clinton in late 1998, brettkavanaugh said in 2009 that the presidents should be “free from prosecution and criminal investigations while in office, including interrogations by criminal prosecutors “.
An opinion that will certainly be debated during the confirmation process in the Senate, at a time when president Trump is being investigated by special prosecutor Robert Mueller on suspicions of obstruction of justice and collusion with the Russian government.
“I believe that presidents should be excused from some of the burdens of common citizenship while they are in office. We should not overburden an incumbent president with civil cases, criminal investigations, or criminal charges,” brettkavanaugh wrote in an article published in 2009 in Minnesota Law Review .
The conservative incubator
If the Senate confirms kavanaugh’s nomination, the supreme becomes dominated by conservativejudges in a way that has not been seen since the 1930s, Curt Levey, chairman of the conservative Group for Justice , told The New York Times . Levey and other US right-wing figures underscore the efforts the conservatives have made since the 1980s so that the US now has a generation of conservativejudges – before that, in the image of what happened to judgeanthonykennedy, several judges appointed by Republican presidents ended up making many decisions aligned with the Liberals.
“They have been fighting this trend for the past 30 years, and the announcement tonight is a stepping stone in the right direction. It is the first time we can say that we have even a conservative court, at least since the 1930s,” he said. Curt Levey.
With the departure of conservativeanthonykennedy, 81, the two oldest judges are liberal – Ruth Ginsburg, 85, and Stephen Breyer, 79. In the group of five conservatives, with brettkavanaugh, the eldest is Clarence Thomas, 70, and two of them are under 53 years old.
Confirmation until November
In such a polarized environment as the American Congress, one would expect all Republican Senators to approve kavanaugh’s nomination, and all Democrats would vote against it. But the bills of the senators on both sides are not limited to partisan loyalties, not all have equal doses of conservatism – an equation that is further complicated in the election year.
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This year, Republicans have only 50 of their 51 active senators because John McCain remains sick. This leaves two avenues for kavanaugh’s approval: either the party holds its 50 senators together, or gets the Democratic party the votes it needs to overturn possible dissent.
Despite the expected difficulties, both paths are viable.
On the Republican side there are at least three doubting senators – Lisa Murkowski (Alaska) and Susan Collins (Maine) because they are supporters of abortion rights, and Rand Paul (Kentucky) and Jeff Flake (Arizona) who, for opposed the nominations of president Trump. Joe Manchin (West Virginia), Joe Donnelly (Indiana) and Heidi Heitkamp (North Dakota) last year approved the appointment of judge Neil Gorsuch and are involved this year in fights over the past year. reelection in states where Trump crushed Clinton in the 2016 presidential election.
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