News and Events

2018-10-05 00:00:02

MRU Justice LAB Member Prof. Schultz: the Supreme Ct. & Politics

MRU's Justice LAB member and Hamline University Prof. David Schultz says that the hearings on U.S. Supreme Court Justice Brett Kavanaugh's appointment to the Court were important politically and legally.

Because of the political polarization and partisanship in Washington D.C., Congress and President Donald Trump have been unable to get much done, thereby forcing the Supreme Court to get involved in resolving major political controversies of the day, he said.

Even before the allegations of Supreme Court Justice Brett Kavanaugh’s sexual misconduct his hearings were important. The Supreme Court has been forced to get involved in resolving major political controversies of the day ranging from the rights of same-sex couples to marry, the constitutionality of Obamacare (health care), reproductive rights, and other issues.  The federal courts have become an alternative forum for groups to press their political issues, he said.

For the last few years the Supreme Court has been a slightly right of center institution, divided politically 4-1-4.  There are four reliably conservative justices appointed by Republican presidents. Four reliably more liberal justices have been appointed by Democrat presidents.  Both sides vote nearly as a bloc.  In between, has been Justice Anthony Kennedy, who has been a swing justice.  In the 30 years plus on the Court he has been perhaps the single most influential Justice, often casting the critical fifth vote deciding cases.  Analysis suggests that over his career he has been in the majority nearly 90% of the time.  In effect, as Justice Kennedy votes so goes the Supreme Court.

Kennedy announced his retirement a few months ago.  The U.S. Constitution says the President shall have the power to nominate members to the Supreme Court and lower federal courts, subject to the advice and consent (approval or confirmation) by the U.S. Senate.

Newly-appointed U.S. Supreme Court Justice Kavanaugh was a U.S. federal court of appeals judge and he served in the Bush administration.  An analysis of his court opinions suggest he is a conservative legally and he might move the Supreme Court in a more conservative direction with a firm five votes.
  
Political science research of voting behavior suggests that ideology increasingly matters.  The best predictor of how a Justice will vote is to look at the appointing president.  At one time presidents were less likely to consider an appointee’s views when nominating them to serve on the Court. But, those days are gone.  The Robert Bork failed confirmation in 1986 changed that.  Now, given that U.S. Supreme Court justices can serve for life and that Washington is deadlocked, potentially the most significant legacy of a president is who he places on the Court.  With confirmation of Justice Kavanaugh, President Trump will now have two appointments to the Supreme Court and the impact will potentially be important.

Democrats understand this and how legally and politically important this appointment is and were ready to fight the nomination originally.  But there were two other factors that made this appointment so contentious.  

First, Democrats are mad that when Justice Scalia died, while President Barack Obama was president, the Senate would not schedule a vote on Obama’s nominee Merrick Garland.  This gave Trump an opportunity to fill the vacancy with Justice Neil Gorsuch.  Democrats felt that the Republicans did not play fair and there is some payback here.  But also, the 2018 elections are in the background here, and the original Kavanaugh hearings occurred under the light of how they would motivate the Republican and Democrat political bases.  

My point is that the stakes were high even before the allegations of sexual harassment, but it appeared that the Republicans had the votes to confirm Kavanaugh.  Probably all of the Republicans were going to confirm, and perhaps two or three Democrats would have also voted for him.  These were Democrats up for election this year in states that Trump won as president.
  
Republicans already had a gender problem with evidence suggesting females voters were mobilized and turning against them in the 2018 elections.  The is the “me too” movement growing out of reaction to comments by President Trump and accusations of sexual misconduct by famous people ranging from Bill Cosby, Harvey Weinstein, and Senator Al Franken.  Women rightly are upset by sexual harassment and misconduct by men and want action taken.

Accusations against Justice Kavanaugh are significant, especially that there are multiple accusations.  Republicans are in a bind.  They want to confirm Kavanaugh and move the Court to the right, and this is something of big interest to the Republican political base, especially the evangelical Christians.  However, public opinion is suggesting Kavanaugh is unpopular and women especially oppose him.  Pushing Kavanaugh runs a huge political risk that women will vote for Democrats and flip both or either the House or Senate and put them in charge.  The issue or question is it worth the political risk. Do you push for Kavanaugh and move the court to the right and take a chance that might put your party out of office?  Also, if Republicans lose control of one or both houses of Congress, this has big implications for Donald Trump in terms of legal investigations against him.

In addition to everything I have already said, hanging over all is the image of the 1991 Clarence Thomas Supreme Court confirmations hearings, when the Senate heard allegations from Anita Hill regarding sexual harassment by Thomas.  While Thomas was confirmed, it left a big legacy. It mobilized female candidates to win big in 1992.  But it also created an image of a bunch of old white men who were out of touch and not treating sexual harassment seriously.  The Republicans want to avoid these problems this time.  They want to protect Kavanaugh and make it look like there is a fair hearing, while also not upsetting women.  That is why there was a female prosecutor hired to question Dr. Ford.

First, prosecutors often act like prosecutors and this is an issue here. I think the Republicans have already made major mistakes during the hearing.  They announced that they did not want a FBI hearing to review the allegations of Ford and others and then U.S. President Trump approved an FBI supplemental investigation.  A Senate hearing is a horrible place to do this type of fact-finding.  

Second, they seem unwilling to allow other accusers to testify, or at least are not giving them sufficient time to state their case.  

U.S. Senator Jeff Flake might have saved the Republican party.  He voted to pass on Kavanaugh’s nomination to the entire Senate, but insisted on a new FBI investigation.  It gives the Republicans the ability to say that they took Ford’s allegations seriously before they did a final vote.

There is no fixed answer regarding what it means to be qualified to be on the Court.  Aside from all the political issues, the tough question is where and how do these allegations against Kavanaugh, even if true, fit into determining whether he is qualified to sit on the Supreme Court.  Legal skills and judgment obviously should be factors. How one assesses character is difficult, and this is a major issue here too.