[SCOTUS] Here we go again...

[Chase]

It has been a long time since I have posted about United States politics - so long in fact, that I feel like I've actually drifted a little to the left on several issues as a result of what Trumpism has done to what was once "conservatism". MAYBE I'll touch on those areas in this thread, maybe not. It just depends on where the discussion is going and what I actually end up putting in this opening post. I just ask for civility here - because it is my firm belief that people CAN discuss governance without losing their mind. It is okay to feel for people - and I expect some of the more direct responses to stem from the heart. I just ask that you don't weaponize your feelings. People voted the way they did for reasons that may or may not be antagonistic - and it's unbecoming to antagonize those people when you don't understand their position.

 

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Last year, Justice Neil Gorsuch was confirmed to the Supreme Court, supplying President Trump with his first notable "victory" in the political arena by fulfilling a promise to voters who may not have cared as much about his direct immigration rhetoric and were put off by his personal life decisions. For evangelicals and conservatives who did not like the President almost as much as they didn't like his opponent, the matter of filling the late Justice Anthony Scalia's seat on the bench with another conservative Justice became their boiling point - and with good reason. Supreme Court Justices are appointed to the highest court in the land for life. This means that generations of legal interpretation hinge on these appointments. These "iffy" voter blocs wanted to make sure the Court remained ideologically conservative and feared the kinds of decisions that would be made by Justices appointed by a President Hillary Clinton. For Trump, Gorsuch, and his newest appointee Judge Brett Kavanaugh as of last night, are the tokens of his legacy that will last beyond his occupation of the White House.

 

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Two weeks ago, Justice Anthony Kennedy announced retirement. Unlike the arch-conservative Scalia, Kennedy was the centrist member of the Supreme Court, and his swing votes were critical in decisions that protected rights such as abortion and same-sex marriage. While his presence was important to conservatives as to what one would identify the ideology of the court in general, liberals always believed they had a chance with Kennedy on the bench.

 

If Judge Kavanaugh is to be confirmed, the new "center" of the court would belong to Chief Justice John Roberts, who dissented with Kennedy and the liberal wing of the court in Obergefell v. Hodges, the case which effectively legalized same-sex marriages nationwide. On abortion, he would be leaned on to protect the Roe v. Wade ruling as precedent - and he had written for the Bush administration that he believed the case was decided incorrectly. Early prognostication indicates that while he may not outright overturn Roe, he could be comfortable crippling it bit by bit. Chief Justice Roberts' most notorious break from the conservative wing of the court - even against Justice Kennedy - was ruling with the liberal Justices that the Affordable Care Act was constitutional in bulk and that the individual mandate was an acceptable tax.

 

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Kavanaugh, as a nominee, is not a likely "Trump" kinda guy, but that just may be what Trump finds impressive about him. He graduated from an Ivy League university (Yale), clerked for Justice Kennedy, and was highly involved legal matters for the Bush administration. He has decided in various cases and written many important documents. From a purely credential standpoint, Kavanaugh is just as appropriate for the Supreme Court as Gorsuch was. 

 

He wasn't the "ideal" pick for conservatives despite falling on the spectrum close to Gorsuch and Justice Samuel Alito. In an abortion case involving a Jane Doe who illegally migrated to the United States in search of an abortion, Kavanaugh's dissenting opinion loosely mentioned the "government's interest in protecting fetal life" and instead focused more on the Trump administration's claim that it was more important to find a sponsor the girl, then 17, that can help her make the decision, effectively leaving abortion on the table. He was a part of a three judge panel that ceded the decision to the full court. One of the judges ruled in favor of the Trump administration due to the belief that foreigners do not have constitutional rights, meaning that Roe didn't apply. The other ruled in favor of Jane Doe and ruled that the administration was being unconstitutional in denying her the right to an abortion. The full court ruled in favor of Jane Doe - and while Kavanaugh did dissent, conservatives felt that he was overly cautious in his ruling. Conservatives also take exception with a former interpretation that Obamacare's individual mandate was a tax - an idea Chief Justice Roberts would later use in his majority opinion saving most of the Affordable Care Act from the legal chopping block, much to conservatives' chagrin.

 

There are two things about Kavanaugh that make his confirmation prospects dicey. The first is that Kavanaugh has a very long paper trail, which could potentially bog down Senators as they review his work very close to November, when the midterm elections take place. If Kavanaugh's documents aren't thoroughly reviewed by that time, he could cause universal "Nay" votes from Democrats on those grounds, and Majority Leader Mitch McConnell would need to whip all of his Republican votes in order to confirm Kavanaugh in time before he potentially loses control of the Senate. A Democratic Senate would be pressured (and may even be willing) to vote down Kavanaugh and force President Trump to pick a much more moderate Justice, which would keep the court as it is today and would be a let-down for Republican voters. Due to Arizona Senator John McCain taking time off to treat cancer, and the Democratic Party picking up a Senate seat in deep-red Alabama, the Senate is effectively 50/50, with 50 Republicans and 49 Democrats. That is a razor thin margin of error.

 

The other thing is a Kavanaugh writing that expresses the support for delaying criminal investigations for sitting presidents until after their term has ended. Judge Kavanaugh did ensure that he wasn't exempting Presidents from the full extent of the law, but the reality of the matter is that it is a very unfortunate thing to have on record when President Trump is the person who nominated you. If he confirms what he said and stands by it, he risks losing all Democratic support in the chamber and perhaps the more centrist or libertarian minded Republicans, and thus won't get confirmed. However, walking away from that statement also could draw ire from President Trump, who may have a personal interest in picking judges that are friendly to him as opposed to inquisitive. Presidents -do- have the right to withdraw court nominations.

 

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Here are the key votes in the Senate to watch.

 

Republicans

 

Rand Paul - Kentucky: Senator Paul is regarded as the most libertarian minded conservative in the Senate, and while he hasn't voiced opposition to Judge Kavanaugh, the nominee has a few documented authoritarian positions that may make him a target for Minority Leader Chuck Schumer in a pinch and are somewhat likely to draw questions from the Freshman Kentuckian. The aforementioned policy on sitting presidents above is one, while he also ruled in favor of the National Security Agency in a few cases regarding call logs, something which Paul has been vocal about in the past. Expected vote: Yes.

 

Susan Collins - Maine: Senator Collins is a pro-choice Republican Senator in a state that is very moderate and has mixed opinions about various issues. She will be the center of a bunch of activist groups from both conservative and liberal circles. Following the nomination of Kavanaugh, she expressed comfort with his credentials and may be warming up to the nominee, but the pressure from the left in her state and a potentially grueling document review process makes my faith in her going along with him at this point shaky.  Expected Vote: No.

 

Lisa Murkowski - Alaska: Alaska is a bit more conservative than Maine, but Senator Murkowski is probably really good friends with Senator Collins, as yet another female pro-choice Republican who is going to see a bit more attention than she may want from the entire country. While I think it may be safer to assume Murkowski and Collins vote the same way, I do think Murkowski is more likely to vote in favor of Judge Kavanaugh because the liberal pressure would be proportionally less from her own state. Expected Vote: Yes.

 

Democrats

 

Doug Jones - Alabama: That.....That still feels very weird to type. Senator Jones was able to win a special election against Roy Moore, a far-right conservative that also carried sexual misconduct allegations involving minors. That's about the perfect storm a Democrat running for the U.S. Senate in Alabama could hope for. Unlike the rest of the Democrats that will be listed, Senator Jones will not have to face voters in his state until 2020, but for every Hillary Clinton voter in Alabama, there were nearly two Donald Trump voters. Trump also carried a higher percentage of votes than Mitt Romney did in 2012, meaning that the state has actually become more Republican from 2012 to 2016. Jones would provide his presumably favored Republican challenger ammunition by not voting in favor of Judge Kavanaugh, especially among the morality voters that voted Democrat in his special election. Just how much of a Democrat are you allowed to be when you have to represent mostly conservative voters? Expected Vote: Yes.

 

Heidi Heitkamp - North Dakota: Senator Heitkamp is a moderate Democratic Senator from a largely conservative state that votes due to agricultural concerns. Trump also won this state handily, by 32 percentage points. Concerning President Trump's first Supreme Court Justice, Senator Heitkamp voted to confirm Neil Gorsuch along with Republicans - largely due to being up for re-election in November. It will be interesting to see how her challenger House Rep. Kevin Cramer pushes her during the coming months. North Dakota is another state that has drifted to the right from an already conservative position. Expect Vote: Yes.

 

Joe Manchin - West Virginia: Every. Single. County.... in West Virginia went to Donald Trump, who won the state by 42 percentage points. However, Senator Manchin remains pretty popular. He has had no trouble working with President Trump despite being a member of the Democratic Party, and his loyalty is shaping up to potentially have him retain his seat. What that means though, is that he will likely vote for Kavanaugh as he did for Gorsuch. He has been the most "Democrat in Name Only" in the Senate because of the hands-off approach Senator Schumer has had with his red-state senators. Expected Vote: Yes.

 

Joe Donnelly - Indiana: Indiana was one of those states that absolutely could have been lost from the Republican column. In 2008 the Hoosier State went to Barack Obama. However, the state tends to be trending to the right. Donnelly was another Democratic Senator who voted for Gorsuch last year, and is up for re-election in November. Expected Vote: Yes.

 

Claire McCaskill - Missouri: In a shining ray of hope for Democrats, Senator McCaskill did not vote for Justice Gorsuch last year, despite being up for re-election in a Trump state. That sets her apart from the last three Senators because it means she's not really beholden to Republicans in Washington on consistancy when she casts her vote. Missouri however, has been running away from the Democrats and she is in one of the most hotly contested Senate battles this year against the GOP nominee Atty. Gen. Josh Hawley. Expected Vote: No

 

Jon Tester - Montana: Senator Tester is in the same boat as Senator McCaskill. He is a Democrat that did not vote in favor of Justice Gorsuch while up for re-election this year. He, like McCaskill, seems to be out of touch with his state's political trajectory, but he also doesn't have to sweat as much as McCaskill as the state's senior senator and is slightly favored to win. I expect that he votes with the party again. Expected Vote: No.

 

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Result: Justice Kavanaugh is confirmed.