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Dennis Marek: Will the candidate be confirmed?

July 15, 2018

Monday night the President exercised one of that position’s most important duties, the nomination of a person to serve on the United States Supreme Court. This is the second time he made such a selection, with last year’s nominee, Neil Gorsuch. This first justice is now voting more conservative than any other member of the Court save Justice Clarence Thomas.

I have followed the nomination and confirmation of Supreme Court justices since law school. In fact, in 1969, I sneaked out of work and sat in the Senate visitors gallery to watch the vote on the confirmation of President Nixon’s nomination of Robert Bork. All 100 Senators appeared in person for that vote and would not approve this clearly conservative segregationist whose true feelings had been made so obvious in his opinions during his prior judicial rulings. He was soundly defeated.

Monday night, the President Trump nominated 53-year-old Brett Kavanaugh to fill the vacancy created by the retirement of Anthony Kennedy. Kennedy was seen quite often as the man in the middle, and was the swing vote between the conservative and liberal members of that august panel on many occasions.

Of the last four judges on the President’s list three were men and one a woman. All were Republican in their beliefs as demonstrated by their prior judicial service. It would have been quite surprising for him to select a woman as so many of the issues on the future table of the Supreme Court will include many of his disliked subjects: Roe v. Wade and abortion, Obamacare and its future, attempts of the courts to limit Presidential power, and governmental regulation of business to name four.

Kavanaugh comes from the one federal court that has produced so many Supreme Court justices, the Federal First Appellate Court in Washington, D.C. This includes Chief Justice John Roberts, Justice Ruth Bader Ginsberg, and Justice Anthony Scalia.

Kavanaugh has a very Republican background. He attended that mecca of law schools, Yale, one of so many Ivy League justices. He worked closely with Ken Starr in his investigation of President Bill Clinton. He assisted heavily in President George W. Bush’s efforts in the 2000 Florida vote recount and served as counsel to that president.

Bush nominated Kavanaugh for his position on the D.C. Appellate Court, but his confirmation took almost three years. Democrats back then felt that he was too partisan for the federal bench. The New York Times at that time called him an “unqualified judicial nominee” before the final confirmation vote. He was finally confirmed on a vote of 57-36.

One blog described Kavanaugh as “generally bringing a pragmatic approach” to his decisions but with a conservative judicial philosophy. He is predicted to be somewhat right of Kennedy, but not as far right as Thomas.

So the Senate will have this on its fall plate. If Sen. John McCain cannot attend and vote, the Republicans have only a one vote advantage. The questioning may become intense for a potential reversal of Roe v. Wade. Most importantly, in many minds is the court limiting the power of the government to regulate the private sector of our country? In one of his Appellate Court decisions Kavanaugh ruled against Obama-era environmental regulations.

Some Republicans have voiced an opinion that Kavanaugh is not anti-abortion enough in a case involving an immigrant girl requesting the procedure. It would appear that once again, any man or woman has inner personal beliefs on controversial subjects, be it abortion, global warming, presidential power, or governmental regulation of the private sector. These areas will certainly be probed in the Senate proceedings for confirmation.

While this writer has his own opinions on several of these positions, be it abortion, Obamacare, or the environment, Kavanaugh, if confirmed, must leave those personal opinions behind and vote for what is constitutionally correct. Does the case of Roe v. Wade deserved to be overturned after all these years? The case of Brown v. Board of Education did flatly reverse the earlier case of Plessey v. Ferguson that held segregation in school was constitutionally permissible as long as the education provided was equal in white and non-white schools. So decisions can be reversed for the betterment of the country and in line with an interpretation of the Constitution. We shall see if Roe v. Wade is one of those subjects.

I would love to once again wander into the Senate gallery for this vote, but in today’s world there would not be room. Time will tell with nominee Brett Kavanaugh. The process may be long.

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