Justice Anthony Kennedy’s retirement from the US Supreme Court will precipitate a cataclysmic political fight, as the departure of the long-serving swing justice will shift the panel’s balance of power sharply to the right.
On a court divided evenly between four conservatives and four liberals, Kennedy held the decisive vote on a range of heated social issues. What’s more, his idiosyncratic views shaped the legal terrain on which issues like abortion and gay rights are litigated in American courts. His retirement not only shifts the balance of power, but also the terms of the culture war.
Two candidates are currently leading the crop of potential nominees: Judges Amy Barrett and Brett Kavanaugh, both young jurists of high regard in the conservative legal establishment. President Donald Trump will announce his choice on July 9.
A mother of seven who was recently appointed to the Chicago-based federal appeals court, Barrett has spent most of her career in the legal academy. She was a professor on the Notre Dame law faculty for 15 years, where she is reportedly held in high esteem. Students twice elected her distinguished professor of the year, and the entire full-time law faculty signed a letter supporting her elevation to the appeals court in 2017.
She began her lengthy, successful tenure in South Bend as a student protégé of then-professor John Garvey, a major figure in American Catholicism. Garvey went on to serve as dean of the Boston College Law School, a Jesuit institution, and is today president of the Catholic University of America, the only pontifical university in the US. Garvey and Barrett co-published a journal article which appeared in a 1998 edition of the Marquette Law Review called “Catholic Judges in Capital Cases”. The piece concluded that Catholic objectors to the death penalty may have to recuse themselves from particular stages of a capital case.
The article featured prominently during her confirmation hearing in 2017 for the appeals court, where Democrats on the Senate Judiciary Committee cast her as a theocrat for whom the dictates of faith are superior to judicial duty. In one memorable exchange, Democratic Senator Dianne Feinstein of California told Barrett that she was concerned by the depth of her religious conviction. “When you read your speeches, the conclusion one draws is that the dogma lives loudly within you,” Feinstein said. “And that’s of concern when you come to big issues that large numbers of people have fought for for years.”
Another leading contender is Judge Brett Kavanaugh of the US Court of Appeals for the DC Circuit, widely seen as the second most important court in the United States given its jurisdiction over much of the executive branch. Kavanaugh was a senior aide to President George W Bush before his appointment to the DC Circuit, where he has since developed a reputation as a serious, text-focused jurist.
He has also generated a significant body of separate writings, which suggests a willingness to defend and develop positions over time. White House lawyers generally find such writings attractive, as they can confirm candidate’s methodological and ideological commitments, or reveal issues in which a jurist is especially interested.
Kavanaugh has taken especially noteworthy positions in the context of administrative law, suggesting he would reign in the sprawling federal bureaucracy many conservatives look upon with suspicion. Aesthetics matter a good deal to Trump, and Kavanaugh cuts the figure of a Supreme Court justice. With a stately manner and smartly parted hair he is, as the President is fond of saying, “straight from central casting”.
A bare Senate majority is needed to confirm a Supreme Court justice. Though the chamber is closely divided, with Republicans clinging to a 51-49 majority, it is difficult to imagine more favourable political conditions for the President. Nine Democratic senators will stand for re-election this November in states Trump carried in the 2016. For these lawmakers, the confirmation vote is a Gordian knot. Vote against the nominee, and they will energise a conservative bloc of voters in their states for whom Supreme Court appointments are a priority. Vote for the nominee, and they will alienate Democratic stalwarts and powerful liberal constituencies essential for their re-election.
Still, discretion and thoroughness prevail at the White House and among an anxious network of movement conservatives, for whom a long-sought Supreme Court majority is finally at hand.
Kevin Daley is a Supreme Court reporter for the Daily Caller News Foundation in Washington DC