5 Big Questions about Brett Kavanaugh

By UM News

5 Big Questions about Brett Kavanaugh

By UM News
University of Miami law and political science professors weigh in on Trump’s SCOTUS nominee.

If he is confirmed, Brett M. Kavanaugh, the conservative federal appeals court judge nominated by President Donald J. Trump to fill Justice Anthony M. Kennedy’s seat on the Supreme Court, would almost certainly shift the ideological balance of the nation’s highest court to the right for years to come.

University of Miami law and political science professors weigh in on some of the big questions concerning the 53-year-old judge who has served for 12 years on the powerful U.S. Court of Appeals for the District of Columbia Circuit.

What will a Supreme Court with Brett Kavanaugh on it mean for the nation?

"The Supreme Court will take an extreme rightward shift, with devastating results for people who care about a whole range of constitutional protections, including LGBTQ rights, reproductive rights, workers’ rights, and voting rights, to name just a few."
—Caroline Mala Corbin, professor constitutional law at the School of Law

"Judge Kavanaugh has worked for a long time as an appellate judge, reviewing the work of federal administrative agencies, prosecutors and the like. The Supreme Court does a lot of that work too—mostly involving lots of different statutes and regulations. Kavanaugh ought to be ready to do this work right from the start, from a point of view he’s already put to use in his opinions over and over. The constitutional law we all associate with the Supreme Court has sometimes mattered in Judge Kavanaugh’s work to date, but he will likely play a quieter secondary role as a justice for a while, more joiner than leader. It will take a few years to learn much about what’s distinctive, if anything, in his constitutional thinking generally."
—Patrick O. Gudridge, professor of law and Dean's Distinguished Scholar at the School of Law

Would Roe v. Wade be in peril?

"There is no question that women’s right to abortion will be in jeopardy. The Supreme Court will have the five votes it needs to either outright overrule Roe and its progeny, or to water down the constitutional test for abortion regulations to such a degree that almost all of them survive."

"Casey (the work of Justices O’Connor, Souter, and Kennedy) and its undue burden rule largely replaced Roe years ago. Would Justice Kavanaugh join other justices voting to scrap Casey altogether? Maybe. Would he vote to reread Casey to allow more state regulatory freedom in dealing with abortions? That’s much more likely."
—Gudridge, referring to Planned Parenthood v. Casey, the 1992 landmark Supreme Court case in which the constitutionality of several Pennsylvania state statutory provisions regarding abortion was challenged. In that case, the court reaffirmed the central holding of Roe v. Wade.

In what other types of cases is Judge Kavanaugh likely to wield influence?

"He’s most likely to play a visible role in free speech cases involving businesses. This is a very important and controversial part of constitutional law. Administrative law is the ‘deep state’ for many, many purposes. The D.C. Circuit—more than any other court, including the Supreme Court—rules administrative law. Judge Kavanaugh may become a less powerful judge, in many ways, if he moves to the Supreme Court."

How do you see the confirmation battle over Judge Kavanaugh shaping up?

"Media reports indicate that with a slim majority in the Senate, the GOP will need ‘all hands on deck’ to confirm Judge Kavanaugh. Given that Republican senators such as Rand Paul, in addition to a number of conservative interest groups, have expressed skepticism, the Trump administration will either have to pull the party together, or persuade electorally vulnerable Democrats in the Senate from more conservative states (e.g., Senator Heidi Heitkamp of North Dakota)."
—Casey A. Klofstad, associate professor of political science in the College of Arts and Sciences

Some Democrats have already said they will oppose the pick. What’s the likelihood that Kavanaugh’s voluminous record—he’s a former Bush aide and he investigated Bill Clinton—will prolong the confirmation process, even past the November election?

"Obviously, the goal of the Trump administration is to confirm Judge Kavanaugh before the 2018 election. What hangs in the balance is keeping enough Republican Senators on board with Kavanaugh while simultaneously persuading more conservative Democratic senators to confirm. If the administration cannot achieve this, the president might move on with a different nominee or be forced to wait until after the 2018 election for the process to unfold.”