Although people often describe the Supreme Court as leaning to the left or right, liberal or conservative, a more accurate description of the high court would be activist or constitutionalist.
Justices who see the court as a vehicle for shaping issues such as civil rights, national healthcare, or even immigration (for or against) are seen as activist judges and when the court is dominated by such justices, it’s seen as an activist court.
On the other hand, justices who see the court’s role as interpreting laws passed by the legislature, and compare these to the principles the Founding Fathers established when creating the U.S. Constitution, are seen as constitutional judges. They are often seen as conservative in that they seek to limit the power of the court to make policy – such as establishing gay marriage or limiting states rights.
Until the retirement of Justice Anthony Kennedy this month, the court largely struck an uneasy balance between these two extremes, with Kennedy often serving as a swing vote on a number of issues.
While Brett Kavanaugh, nominated by President Donald Trump to fill the vacancy on the court, worked for Kennedy, he is seen as a staunch constitutionalist, leaving conservative Chief Justice John Roberts to become the likely swing vote on controversial issues. Kavanaugh also irks liberals because he served as associate legal counsel in a Senate investigation of President Bill Clinton in the 1990s.
If confirmed, Kavanaugh is expected to steer the U.S. Supreme Court in a much more conservative direction, halting the court’s recent history of progressive rulings.
At the heart of the upcoming conflict is the issue of abortion.
Despite rhetoric from pro-abortion groups and Democratic legislators, the court will not likely overturn Roe v. Wade, the 1970s ruling that legalized abortion throughout the United States.
But the court will likely allow states to have more say over regulating access to abortions, and almost certainly will support any move by the GOP to strip federal funding from Planned Parenthood.
While women’s groups and others try to tie the Kavanaugh nomination to other issues such as LGBTQ and immigrant rights, Kavanaugh’s record as a judge shows little evidence about which way he’ll lean.
But this hasn’t stopped the onslaught by local Democrats, not just to build a case against his nomination but also to use it as a campaign to retake Congress in the November mid-term elections.
A GOP-sympathetic court could mean real problems for progressives, especially if the Democrats cannot take control of the Senate or the House of Representatives. The GOP would control all three levels of the federal government and could push through a conservative agenda that might block progressive initiatives over the next two years and perhaps beyond.
But to force through Kavanaugh’s nomination ahead of the November election for U.S. Senate would most likely require all 50 GOP votes in the Senate. The strategy for Democrats will be to seed doubt in those GOP senators in the hope of shaking loose one or more votes.
This might allow the Democrats to stall the vote until after the new Congress takes power in January in the hope that they can win enough seats in November to control the Senate by that time.
High Court nomination will be a local issue
The Kavanaugh nomination is already playing a role in the U.S. Senate election in New Jersey. GOP candidate Bob Hugin is spending a small fortune to try and unseat Democratic U.S. Senator Bob Menendez.
Calls by prominent Democrats to have Hugin publically take a position on Kavanaugh are part of a double-barreled campaign to discredit Kavanaugh as well as put Hugin on the hot seat. The problem for Democrats is the Kavanaugh is more than qualified for the position on the Supreme Court. So Democrats will need to go after him on issues unrelated to his experience as a judge.
Rep. Bill Pascrell, one of the leading progressive voices in the House of Representatives, has joined Menendez, State Sen. Loretta Weinberg and others in questioning the Hugin and Kavanaugh positions on abortion, the LGBTQ community, voters’ right and labor. Expect this rhetoric to become louder and more insistent the closer we get to the expected confirmation vote in the fall. If Democrats succeed in stopping or delaying the vote, these issues will become front and center in the mid-term elections in November.
Menendez, seen as vulnerable to a possible upset vote, has taken on another tactic for attacking Hugin – the candidate’s vast wealth.
Menendez is accusing Hugin of trying to buy the election, as if vast wealth from contributors doesn’t do that already.
Using terms to describe Hugin such as “greedy drug company CEO,” the Menendez campaign clearly hopes to milk public distrust of wealthy people and drug companies in an effort to offset the senator’s dismal public approval ratings.
Expect things to get even uglier.
Al Sullivan may be reached at firstname.lastname@example.org.