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Monday, July 16, 2018

Why Judge Kavanaugh’s elevation matters

Kavanaugh’s nomination has attracted apprehension and criticism, and Democratic lawmakers are expected to attempt to block his confirmation.

By: Express News Service | New Delhi | Published: July 12, 2018 12:55:18 am
why judge kavanaughs elevation matters donald trump us supreme court senet US President Donald Trump introduces his Supreme Court nominee Judge Brett Kavanaugh (left) in the East Room of the White House in Washington. (Source: REUTERS/File)

President Donald Trump Tuesday named Judge Brett M Kavanaugh of the Court of Appeals for the District of Columbia Circuit to replace Justice Anthony Kennedy at the US Supreme Court. Justice Kennedy, 81, retires at the end of this month. Kavanaugh’s nomination has attracted apprehension and criticism, and Democratic lawmakers are expected to attempt to block his confirmation.

This opposition is on account of Kavanaugh’s politics, reflected in his record of judgments. Why are the political views of a justice of the US Supreme Court important? How does the situation in that country compare with that in India? Should people outside the US care?

Judges for life

Unlike in India, justices of the US Supreme Court are appointed for life, unless they are impeached and convicted by Congress, or they choose to resign or retire. (Indian Supreme Court judges retire at age 65; this year, four judges have already retired, and another three — Chief Justice Dipak Misra and Justices Kurian Joseph and Madan B Lokur — are due to retire.)

There is no mechanism to remove a US justice who is temporarily or permanently incapacitated, but who cannot or will not resign. Of the nine justices on the Bench currently, two are octogenarians (Justice Ruth Bader Ginsburg, 85, and Justice Kennedy, 81); the rest are between ages 50 (Justice Neil Gorsuch) and 79 (Justice Stephen Breyer). Should Kavanaugh (53) be confirmed, he and Justice Gorsuch, the other Trump nominee, could both potentially serve for 30-35 years. Kennedy, whom Kavanaugh could replace, has been on the Bench for 30 years, and Justice Clarence Thomas, who is still only 70, has been around for over 26 years.

An SC justice intervenes in the most crucial decisions of American public life for a length of time that could extend over multiple generations. It follows that Presidents, who appoint Supreme Court justices, have the power to leave their stamp on the country — and sometimes on the world — for a similar length of time. All but four Presidents so far have appointed at least one justice; every President who has served more than one term has appointed a justice.

‘Political’ judges

Unlike judges of the Indian higher judiciary, US SC justices have clear political and ideological leanings. There are liberal justices and conservative justices, and the decisions they make reflect these leanings. A widely used ideological spectrum analysis by political scientists Lee Epstein, Andrew D Martin, and Kevin Quinn places Justices Thomas, Gorsuch, Samuel Alito and Chief Justice John Roberts on the conservative side of the spectrum (from more conservative to less), and Justices Sonia Sotomayor, Ginsburg, Elena Kagan and Breyer on the liberal side (more to less).

The retiring Justice Kennedy, although seen as being more conservative than liberal, occupied the spectrum’s crucial middle, and held an effective deciding vote in especially contentious matters.

Majority implications

Counting Justice Kennedy, the court already has a 5-4 conservative majority. If Kavanaugh replaces Kennedy, he will occupy a position close to the far end of the conservative spectrum — between Justices Thomas and Gorsuch — and significantly strengthen the majority. And should the 85-year-old Justice Ginsburg too, come to be replaced in the near future by a Trump nominee, the court could conceivably have a 6-3 conservative majority. In recent years, the court has allowed gay marriage in all 50 states, endorsed Trump’s travel ban, and shackled a plan to cut carbon emissions as appeals are heard. All of these have profound consequences. Many fear a conservative majority could overturn Roe v Wade, the landmark ruling that gave women crucial reproductive rights.

Could these developments have repercussions beyond the US? While research suggests the influence of US court decisions has been waning steadily, decisions on, say, climate change or trade policies could, in theory, impact other countries, too.

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