It’s easy to become numb to the hyperbole that oozes out of Washington whenever commentators discuss US politics. But even the most jaded will have been jolted when Justice Anthony Kennedy unexpectedly announced his retirement from the US Supreme Court.
Appointed to the bench by the then president, Ronald Reagan, in 1988, Kennedy has been the crucial “swing vote” in many of the most important judicial battles of the past three decades. The court is now ideologically split, with four liberal justices appointed by Democratic presidents and four conservatives appointed by Republicans. The shaky five to four centre-left consensus that Kennedy had helped to maintain on a number of issues rests in the hands of the US president, Donald Trump.
Now, in what may prove to be one of the most consequential decisions of his presidency, Trump has nominated Brett Kavanaugh, a deeply conservative judge on the US Court of Appeals in Washington DC. While conservatives are clearly elated, liberals are furious at the prospect that Trump’s new nominee will help the court either reverse or greatly undercut several of the protections that Kennedy – in his swing vote role – has supported over the years, including abortion rights and LGBT rights.
With the Republicans holding only a razor-thin majority in the Senate, Kennedy’s retirement has set off what could be one of the biggest judicial confirmation battles in modern US history. And, ironically enough, Kennedy himself was part of one of the most contentious confirmation battles in modern US history.
You’ve been Borked
In the summer of 1987, Justice Lewis Powell, who was himself the swing vote on the court at the time, unexpectedly announced his retirement. Reagan, who was determined to use the vacant seat to ensure his governing philosophy would outlast his administration, nominated the deeply conservative Robert Bork. This set off a political firestorm that engulfed Washington for months.
After a coordinated liberal campaign to “Block Bork”, the Senate rejected him by a vote of 58-42 – to this day, the largest number of votes ever cast against a nominee. This shock defeat, coupled with the reaction from the right, persuaded Reagan to nominate Bork’s conservative colleague, Judge Douglas H. Ginsburg. Yet the “Bork II” Battle, in Washington parlance, lasted just nine days: revelations about Ginsburg’s private life made his nomination untenable and Reagan was forced to make a more moderate choice.
While Kennedy was still ideologically conservative, his view of constitutional rights was expansive enough to placate most of the liberal groups who had fought so passionately against Bork and Ginsburg. And since ascending to the bench in 1988, Kennedy has proven to be more liberal on precisely the issues – sexuality, civil rights – that these critics had emphasised in their earlier attacks.
Moreover, internal memos among Reagan’s team at the time reveal clear concerns about Kennedy’s moderate leanings. These aides identified some “disturbing aspects” in their nominee’s record, particularly on gay rights. But when introducing Kennedy as his nominee, Reagan himself emphasised that he “seems to be popular with many senators of varying political persuasions”. And so, with his conservatism proving sufficiently amorphous to calm the waters after Bork and Ginsburg, Kennedy sailed through the confirmation process with a Senate vote of 97-0.
Given the fact that Reagan team’s had doubts about Kennedy, clearly his nomination was something of a defeat for the administration. As Washington newspaper Roll Call acknowledged in 2015, Kennedy’s appointment and the opinions he has written “vindicate both the fears of Reagan’s advisers about him and the liberal forces that opened the path to his nomination all those years ago”.
In many ways, Reagan surrendered his conservative crusade by opting for a compromise candidate. But Trump, as is his wont, has taken a rather different path.
When he was selected for the Court of Appeals by the then president, George W. Bush, in 2003, Kavanaugh’s nomination stalled in the Senate for nearly three years, with Democrats reluctant to confirm him because he was seen as “too partisan”. Indeed, Kavanaugh had earlier worked for independent counsel Kenneth Starr in the hugely contentious investigation that eventually led to the impeachment of the sitting president, Bill Clinton. The right has applauded Trump’s nomination of Kavanaugh – and the battle lines have immediately been drawn for what will likely be a standoff of epic proportions.
This battle won’t be about just Kavanaugh himself – it’ll be a fight to determine Trump’s political and legal legacy. If Kavanaugh is confirmed, a conservative majority will be cemented on the nation’s highest court for years to come, and right-wing activists may be tempted to bring increasingly aggressive cases forward.
Kennedy provided the fifth and decisive vote on some of the most critical rulings of the past three decades, rulings that safeguarded and expanded Americans’ civil rights on sexuality, gender, racial equality, and more besides. What galvanises both sides of the ideological divide today is the fact that the future of several of these “third rail” issues are now at stake, especially the court’s 1973 decision in Roe v Wade that effectively enshrined a woman’s right to an abortion.
Activist groups on both sides are already waging a public relations war over the airwaves, urging citizens to pressure elected officials through phone calls, emails, and protests. In an ironic turn of events, the Democrats are taking the same approach the Republicans used to stymie Barack Obama’s last nominee in 2016, arguing that any decision should be put on hold until after this November’s midterm elections. The Senate minority leader, Chuck Schumer, has noted that it would be the “height of hypocrisy” to vote sooner.
It’s yet to be seen whether the Democrats will have the same success with this strategy as the Republicans, who managed to stave off the nomination of moderate Merrick Garland and instead allow for Trump to fill the vacant seat with the far more conservative Neil Gorsuch. But it seems the minority party are emboldened by their chances of taking back the Senate in a few months’ time, and that they intend to use every device they can to keep the administration from pushing Kavanaugh through.
The already declared battle royal will not only affect the 2018 midterm elections, but will also determine the shape of Trump’s legacy and the future of American jurisprudence for decades to come. So sit back, grab the popcorn, and prepare for a rough ride.