[ad_1]
WASHINGTON – For President Trump and Republicans in the Senate, confirming Judge Brett M. Kavanaugh as a Supreme Court Judge will be a hard-won political victory. But for the conservative legal movement, it is also a signal triumph, the culmination of a decades-long project that began under the Reagan era with the ambitious goal of capturing a solid majority within the highest court in the country.
Once Judge Kavanaugh is sworn in, the Supreme Court will be more conservative than at any other time in modern history. According to some measures, "we could enter the most conservative era since at least 1937," said Lee Epstein, a law professor and political scientist at Washington University in St. Louis.
The new majority is sure to move the law to the right on countless deeply contested issues, including abortion, affirmative action, voting and gun rights. And the victory will most likely be lasting. Judge Kavanaugh, now 53, could sit for decades, and other Conservative judges are young compared to the Supreme Court. The liberals of the court are not. Judge Ruth Bader Ginsburg is 85 years old and Judge Stephen G. Breyer is 80 years old.
And Anthony M. Kennedy, Sandra O'Connor Day or Lewis F. Powell Jr., who have forged alliances with both liberals and conservatives, will have no pendulum justice. Instead, the court will consist of two separate blocks – five Conservatives and four Liberals.
In other words, the court will perfectly reflect the deep polarization of the American public and political system. The fight to have Judge Kavanaugh appear on the court only widened that division. The confirmation process consisted of a fistlessly closed fight and the candidacy was muscled by the strength of the political will. All of this inflicted collateral damage on the court, leaving him injured and diminished.
It also left Chief Justice John G. Roberts Jr. in a delicate position. He will gain additional power by occupying the seat at the ideological center of the court held by Judge Kennedy, whose retirement in July created the vacant post of Judge Kavanaugh. But Chief Justice Roberts may want to use this power sparingly if he wants to restore confidence in an institution that has been discussed for months in almost purely political terms.
In the long run, however, there is little doubt that Chief Justice Roberts will lead the court to the right. The only question will be the pace of change. "This is going to be an extremely conservative Supreme Court," said Tracey George, law professor and political scientist at Vanderbilt University. "Even if Trump is not re-elected and a Democrat is elected, it will not change."
Judges insist that they discern and apply neutral legal principles regardless of the policy. There is ample evidence to the contrary, but the court's legitimacy is based on public confidence that it is not ultimately a political institution.
This confidence has sometimes been put to the test, particularly in the Bush v. Gore, decision of 2000 that left the presidency to George W. Bush. It was a 5 to 4 decision, and it split on ideological grounds. But two named Republicans were among the dissidents, which means the decision could have been political but not partisan.
Judge Kavanaugh's own testimony, fueled by violent attacks on Democrats, also undermined public confidence in the court, said Stephen Gillers, Professor of Law at the University of New York.
"That removed the coat of the Wizard of Oz," he says. "The court has its own mystique. Kavanaugh's behavior during the last confirmation hearing broke this mystique. It will be difficult for the court to come back from that. "
At a hearing devoted to charges of sexual misconduct against him, a brutal and angry judge, Kavanaugh, disrespected the senators who questioned him. He called the accusations a "calculated and orchestrated political coup", fueled by "revenge on behalf of the Clintons and millions of dollars in money from leftist opposition groups".
This formulation was a striking departure from Judge Kavanaugh's and his patient's judicial opinions and measured responses in his first round of confirmation hearings before the charges of sexual misconduct arose. Rather, it was part of his work in Ken Starr's investigation of the independent lawyers led by Bill and Hillary Clinton and, to a lesser extent, his role as a White House aide. partisan roles.
The accusations themselves, firmly denied by Judge Kavanaugh but credited by a large part of the public, undermined the moral authority of the Supreme Court, especially since Justice Clarence Thomas was a victim. sexual harassment at its own confirmation hearings. The reputation of the court can not help the court's reputation that a third of its judges were questioned for sexual misconduct.
The court also faces other challenges because it may be perceived as not only political but also partisan. Judge Kavanaugh will be the fifth member of a strong conservative majority, all appointed by Republican Presidents. The members of the four-member Liberal wing of the court have all been appointed by the Democrats.
This partisan division is a relatively new phenomenon, said Lawrence Baum, political scientist at Ohio State and author of "The Company They Keep: How Partisan Divisions Have Arrived at the Supreme Court", to be published next year.
"The fact that the ideological lines on the court coincide with the party lines since 2010 gave the court a more partisan image," said Professor Baum.
Justice Kennedy was a moderate Conservative who has sometimes joined the Liberal wing of the court in important cases involving conflicting social issues. There is little reason to believe that a Kavanaugh judge would create similar coalitions.
"Kavanaugh will clearly push the court even further in the politically conservative direction," said Geoffrey R. Stone, a law professor at the University of Chicago. "The most obvious problems that will be affected by his appointment relate to issues such as abortion, positive action and the rights of gays, lesbians and transgender people."
Professor Stone was one of more than 2,000 law professors to have signed a letter opposing the confirmation of Judge Kavanaugh, stating that he "had not demonstrated the impartiality and judicial temperament necessary to sit at the highest court in the country ".
Chief Justice Roberts can not do anything to counter the partisan impressions left by the confirmation process, Professor Gillers said. "The best thing for the court as an institution is to continue as if nothing had happened," he said.
Chief Justice Roberts could take a step forward to minimize controversy. When he is in the majority, which represents about 90% of the time, he decides which judge will write the opinion of the majority. It will be surprising if he chooses to entrust, for example, a case of sexual harassment to Judge Kavanaugh.
The confirmation hearings could affect the relationship between the Chief Justice and his new colleague in another way, said Neal Devins, Professor of Law at William & Mary and other author of "The Company They Keep".
"Before the charges of harassment, it is quite possible to imagine that Kavanaugh would be an intellectual leader who could well shape the doctrine in the same way that Scalia fashioned the doctrine," he said, referring to Judge Antonin Scalia, who died in 2016. However Professor Devins said: "Chief Justice Roberts may be more reluctant to accept these positions, fearing that the court will be perceived as very partisan and politicized."
After fighting for confirmation of earlier divisions – when Judge Robert H. Bork was dismissed by the Senate in 1987, resulting in the appointment of Judge Kennedy, and when Judge Thomas was narrowly confirmed in 1991 – the reputation of the court felt it.
"Attitudes towards the court have had a lasting effect," said Professor George. "But it did not take long."
In the digital age, there is a joker that can produce a more lasting effect this time around, she added: video clips can live forever online. "People share images of him at the hearing, where he looks belligerent and certainly does not look judiciary," said Professor George, referring to the Judge Kavanaugh. Not to mention his devastating portrait in "Saturday Night Live," which has been viewed 20 million times on YouTube.
Some commentators have argued that Judge Kavanaugh should recuse himself from many types of cases, including those involving Mr. Trump, Democrats and Liberal rights groups. This point of view is not widely shared by experts in legal ethics.
"I do not think the risk of disqualification is very high," said Professor Gillers. "He has made big accusations against large groups of undifferentiated people. I do not think any member of these groups would have reason to seek to disqualify him. The Clintons, of course, but very few others.
The judges decide for themselves if they have to leave the business. Judge Ruth Bader Ginsburg sat in cases concerning Mr. Trump and his administration after publicly criticizing him during the presidential campaign.
In 2011, as the Supreme Court was preparing to challenge President Barack Obama's health care law, some critics said that Judge Thomas should disqualify himself because his wife, Virginia, had worked with groups opposed to the law. . Others have said that Judge Elena Kagan should not hear the case because she may have been involved in some of its aspects when she was Solicitor General of the United States. Both judges sat on the case.
In his year-end report of 2011, Chief Justice Roberts stated that the judges could be trusted to decide whether or not they should recuse themselves because they had been approved by the Senate.
"I have every confidence in the ability of my colleagues to determine when a challenge is warranted," Chief Justice Roberts wrote. "They are lawyers of exceptional integrity and experience, whose character and aptitude have been examined through a rigorous appointment and confirmation process."
Source link
