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The choice is anything but unexpected: the empiricalscotus.com website has already announced in December that Brett Kavanaugh was most likely named, and it's even Kavanaugh that Trump decided to choose to replace Anthony Kennedy.
This article is the second of two on Brett Kavanaugh, Trump's candidate for the vacancy. United States Supreme Court of America. The new occupant of the place could cause a change in the "political" trend of this court in the coming decades. Given the type of decisions taken by the Court and how they become guides for legislators and regulators around the world, the subject becomes particularly important in Portugal and in the European Union.
Appointment
Kavanaugh is a classic candidate for the Republican Party at a very unusual time in the history of the United States. How does this change the chances of your confirmation?
Republicans have a majority in the Senate, which has the power to confirm or reject Trump's candidate. Although this majority has declined compared to the time of the appointment of Gorsuch, now aged 51-49 and, with the 51st vote to belong to John McCain, absent due to illness, in the practice it is 50-49.
[19659034] Thus, on the Republican side, it is crucial for Kavanaugh that everyone votes for his confirmation. The main doubts announced by commentators are Susan Collins (Maine) and Lisa Murkowski (Alaska), both in favor of women's freedom of choice when it comes to abortion (on Kavanaugh's position on abortion , see below). both senators voted for Gorsuch's confirmation, which would present them with essentially the same problem. Rand Paul is another senator to no avail. According to the Associated Press, Paul does not like Kavanaugh to be in favor of a strong executive power, which could lead him to vote against it.
On the Democrats' side, there are also names that can change the barricade: Joe Manchin (West Virginia) Joe Donnelly (Indiana), and Heidi Heitkamp (North Dakota), three senators with re-elections in November in the states won by Trump, and three senators who voted in favor of the appointment of Gorsuch . Gorsuch's appointment has never been, like this one, "by a vote" – literally – the conclusions are hard to extrapolate to Kavanaugh
Another of the enemies of Brett Kavanaugh's appointment is the time because the Senate is in November, and there is a considerable possibility that Republicans lose their majority. In this case, it is predicted that Democrats would have the opportunity to block the appointment of a judge who would move the central court vote to conservatives, like Kavanaugh. Mitch McConnell has already said that because of the huge production of opinions and legal advice, it would be difficult to quickly pass Kavanaugh's vote without impairing the quality of the review of the Senate. Democrats are expected to do everything possible to delay the process, and Republicans want to speed it up at all costs.
The conclusion that can be drawn is that, if it is not guaranteed, confirmation of Kavanaugh is more likely than rejection. What does this mean for the decisions of the US Supreme Court (SCOTUS)? Let's analyze Kavanaugh's thought, step by step, to try to perceive.
Originalismo
Kavanaugh is an originalist. This means that it is someone who reads the law as it was drafted, thinking of the historical and political context of the time and the original intention of those who wrote it To better understand, I transcribed your words from Joseph Story Distinguished Lecture, at the Heritage Foundation in October 2017:
"The speech of General Meese in 1985 helped to advance a simple philosophy of constitutional and statutory interpretation. This is not complicated, but it is deep and deserves to be repeated often. The judge's job is to interpret the law, not to make law or to make politics. So, read the terms of the law as they are written. Read the text of the Constitution as it is written, taking into account history and tradition. Do not constitute new constitutional rights that do not appear in the Constitution. Do not hesitate to enforce the constitutional rights that are in the text of the Constitution. Change the Constitution is for the process of amendment. To change the policy within the constitutional limits is for legislators. "
So one must expect Kavanaugh to be in favor of all the rights of the individual, enshrined in the Constitution, which is contrary to the introduction of new rights across the normal legislative process, as Obama tried to do with the right to health, or as Roe v. In health, the main problems are the constitutionality of the Affordable Care Act (Obamacare), the public funding of contraception and abortion.
As for Obamacare, Kavanaugh became famous among conservatives for helping to justify the individual mandate, forcing US citizens to subscribe a policy or to pay a penalty.According to Kavanaugh, the individual term is treated as a tax (statement of elector in Seven-Sky v. Holder) .The tax equalization was then used by Judge John Roberts of SCOTUS to rule on the warrant
On the contrary, Kavanaugh ruled in favor of religious organizations, who challenged the Obamacare mandate, which requires employers to include contraceptive options in their employees' policies, or to pay a "fine" . Religious organizations can claim an exemption from this mandate, but in this case the organization Priests for Life stated that the request for exemption would be a kind of collusion with something with which they do not agree. Kavanaugh then argued that the organization was right to base its decision on the Restoration of Religious Freedom Act
One of the most discussed aspects of the consequences of Kavanaugh's confirmation is abortion and the possibility of inversion decision of the famous Roe v. Wade . When he was appointed to the circuit DC he had to face questions about it in his confirmation, from Senator Chuck Schumer (New York, Democrat). His answer was elusive
Senator Schumer : "Do you consider Roe v. Wade is an abomination? " Brett Kavanaugh :" If confirmed at Circuit D.C., I would follow Roe v. Wade faithfully and fully. This would be a binding precedent of the Court. "
More recently, in a controversial case, Kavanaugh ruled against a minor and illegal immigrant seeking abortion in Texas." Kavanaugh ruled that, before obtaining the release for abortion, there should be a 10-day waiting period to try to repatriate the immigrant.Although this decision has been cited in recent days to warrant a re-examination of Roe v. Wade, the truth is that It's hard to read an unbiased opinion on the case. "Liberal sources say the ruling was due to opposition to abortion, and quote in their defense the passage Kavanaugh wrote. saying that it would be in question "eligible interest [do Governo] in favor of fetal life, protecting the best interests of a
Conservative sources say that, in fact, the fact that the immigrant is illegal means that she has no right s constitutional consecrated in practice, denied the procedure – and considered it a negative point for the appointment of Kavanaugh, who should have defended the nonexistence of a constitutional right to the abortion. For that, they contextualize with another part of the justification of Kavanaugh, who declares that the decision contrary to his "rests on a constitutional principle as innovative as it is false: a new right for illegal immigrant minors in government detention American to obtain
This case is also a good example of the polarization of American politics, and it is also a good example of the polarization of American politics,
Impeachment
As described in the first part of this series of articles, Kavanaugh was largely implicated in Bill Clinton's impeachment process, but over the years, their views have changed.Watch them chronologically.
When, in 1998, Kavanaugh worked on Kenneth Starr's team, he helped produce a list of 11 possible reasons for the dismissal of Clinton. Two of them were are particularly relevant today: lying to the staff and deceiving the public, two actions that Clinton would then have carried out deliberately and insistently. How many times has Trump lied to his staff? and the public? Since the inauguration, we have witnessed systematic lies uttered by his various secretaries of the press Spicer to Huckabee Sanders, the famous alternative facts . We also asked your attorneys to admit that it was Trump who dictated a statement to Don Jr. regarding meetings with the Russians during the campaign. Meanwhile, the number of tweets that Trump has published in public opinion and that are objectively wrong has already been lost. . Two days ago, at a campaign rally in Montana, 76% of all statements made by Trump were considered false by the Washington Post Fact Checker! From the logic of the 1998 Starr Report, we would have sufficient evidence to support an impeachment process .
There are doubts as to the extent to which these conclusions can be transposed into Kavanaugh's own thinking, since in
In 2009, he wrote an article for Minnesota Law Review where he argues that Congress should exempt presidents on criminal charges, since such cases are necessarily politicized and distracting. However, in the same article, Kavanaugh argues that if the president does something very wrong, the impeachment must be available.
This article has been widely discussed since the appointment of Kavanaugh. Let's try to be very clear about what it stands for, and why. Kavanaugh says that in the 1990s, he thought that a president should be subject to all the duties of citizenship, but meanwhile he changed his mind – partly because of the process that Clinton was undergoing . He says in this article "The nation would certainly have been better off if President Clinton could focus on Osama bin Laden without being distracted by the Paula Jones sexual harassment case and its criminal ramifications."
Does this mean that you do not agree with the possibility of an impeachment? No, bad. Incidentally, what is at issue are civil or criminal cases, judged by the courts, while dismissal is a political process, judged by the Congress. But even with respect to civil or criminal cases, the possible outcome of Robert Mueller's investigation, it is not a coincidence that Kavanaugh opposes it. The expression that he uses is that Congress should get the President to be exempted from these procedures during the position, which may mean that, as things stand, this does not happen. is not true. It should also be noted that in the case of Bill Clinton, the latter was charged with crimes that allegedly took place before the inauguration, which SCOTUS found to be constitutional and with which Kavanaugh is in agreement. And since some of the charges against Trump are linked to crimes committed during the campaign, the issue may not be resolved.
Other Issues
There are still other issues that concern the Liberals and the Conservatives. In terms of voting rights, Kavanaugh had already made more pleasant decisions for the Conservatives than for the Liberals. An example of this is his defense of a South Carolina law on voter identification, countered by the evidence that tens of thousands of voters would be unable to exercise their rights of vote.
Kavanaugh was already in favor of SCOTUS's decision in Heller v. DC in which a majority of 5-4 interprets the second amendment as guaranteeing an individual right to carry a weapon, as opposed to another interpretation, which sees the second amendment as guaranteeing the collective right of a state to maintain militia
The lawyer Adam Feldman wrote in his blog empiricalscotus.com that Kavanaugh decided "almost entirely in favor of big business, employers in labor disputes, and against the defendants in Criminal Cases "
With respect to religious freedoms, the Conservatives are unsure of Trump's appointment, mainly because of past occasions when Kavanaugh considered that there were valid reasons for the will the government to facilitate women's access to contraception (interpretation of the verdict of the case Burwell v. Hobby Lobby Stores ) [19659046]
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