Republican lawmakers and White House officials have said they anticipate a smooth confirmation process for Brett Kavanaugh, President Donald Trump’s nominee to replace retiring Supreme Court Justice Anthony Kennedy. But his judicial history could make for a rocky few months.
Though no date has been set for the confirmation hearings, GOP Senate leaders have said they would like to confirm Kavanaugh before the court’s new term begins on Oct. 1, possibly holding a vote after Labor Day. Before that, Kavanaugh will make the rounds on Capitol Hill to meet with senators.
Democrats have already come out in opposition to Kavanaugh, a reliable conservative who was handpicked by the Federalist Society, and are hoping a handful of Republicans might break with their party. Some GOP lawmakers have suggested his record is not conservative enough.
A handful of moderate Democrats could vote with Republicans to confirm Kavanaugh.
Like the confirmation vote for Justice Neil Gorsuch, Kavanaugh’s confirmation could come down to the votes of just a handful of senators.
Here are some potential points of contention.
If confirmed, Kavanaugh would shift the ideological makeup even further to the right, putting many issues in play, including abortion and the court’s landmark Roe v. Wade ruling.
Conservatives see that as a huge win, and Kavanaugh’s judicial record indicates he would likely side with anti-abortion activists on cases concerning reproductive rights.
Kavanaugh’s most prominent opinion on abortion rights came in 2017, when he wrote in dissent not to allow an undocumented teenager to seek an abortion while in federal custody at the U.S. border in Texas.
Kavanaugh argued that the judges in the majority had created a new right for undocumented immigrant minors in U.S. government custody ”to obtain immediate abortion on demand.” He emphasized instead the government’s “permissible interests” in “favoring fetal life” and “refraining from facilitating abortion” ― language that certainly appeals to opponents of abortion rights.
Kavanaugh’s use of the term “abortion on demand” ― coded language that’s only ever employed by anti-abortion activists ― signifies a hostility to reproductive rights in general.
The issue of abortion could tip the scales for two key GOP senators: Susan Collins (Maine) and Lisa Murkowski (Alaska), who have both broken with their party in the past and have generally expressed pro-abortion rights views.
Earlier this month, Collins said she would not approve a nominee who “demonstrated a hostility to Roe v. Wade.”
On Monday, she said she plans to “conduct a careful, thorough vetting of the President’s nominee to the Supreme Court, as I have done with the five previous Supreme Court Justices whom I have considered.”
Murkowski released a similar statement.
“While I have not met Judge Kavanaugh, I look forward to sitting down for a personal meeting with him,” she said. “I intend to review Judge Kavanaugh’s decisions on the bench and writings off the bench, and pay careful attention to his responses to questions posed by my colleagues on the Senate Judiciary Committee.”
Previous Objections To His Partisan Work
Since 2006, Kavanaugh has served as a judge on the U.S. Court of Appeals for the District of Columbia Circuit. His confirmation process for that post was arduous, stretching over several years, in part because Democrats raised objections about his partisan history.
Sen. Chuck Schumer (D-N.Y.) accused him of being “a very bright legal foot soldier” for Republicans.
In the 1990s, Kavanaugh worked on prosecutor Kenneth Starr’s investigations of President Bill Clinton, which led to impeachment proceedings. During that time, he developed broad views on executive power.
He also served on President George W. Bush’s legal team during the contentious Florida recount following the 2000 presidential election. Bush later appointed him as his staff secretary, after a stint in the Office of the White House Counsel.