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Wednesday, July 18, 2018

Why is Brett Kavanaugh the most powerful man on the planet

This is an extremely broad view of the president’s power – as an office empowered to interpret the constitution and take a view different even to the judicial branch, which traditionally is vested with the power to rule on the constitutionality of laws.

Written by Dr Sandeep Gopalan | Updated: July 11, 2018 5:25:45 am
Why is Brett Kavanaugh the most powerful man on the planet President Donald Trump shakes hands with Brett Kavanaugh, his Supreme Court nominee, in the East Room of the White House in Washington. (AP Photo)

Who is the most powerful man on the planet? Trump? Putin? Xi? None of the above. The answer may be Judge Brett Kavanaugh. That may surprise many, but here’s why.

The reason is simple: Judge Kavanaugh will, if confirmed by the Senate, take the seat of Justice Anthony Kennedy on the US Supreme Court at a time of unparalleled importance. Kennedy had served for the last 4 decades as the swing vote on the most powerful court on earth. Although US SC decisions are only binding in the US, they are highly influential in the development of law world-over because judges in many countries refer to them in their decisions. Even when foreign courts adopt a position contrary to the US, their reasoning benefits from analysis of arguments evaluated by the American judges.

The reasons for Kavanaugh being so important are at least two-fold. First, many expect abortion rights secured in Roe v. Wade (1973) to be destroyed. In 2014, the last year for which CDC statistics are available, there were 652,639 abortions conducted in the US. Abortion numbers have been falling – there were 1,297,606 abortions performed in 1980 and it reached a high of 1,429,247 in 1990. Even though the number has fallen over 50% from 1990 high, a decision to reverse or limit Roe is truly a life-or-death power just on this one issue.

Roe was affirmed by conservative justices including Kavanaugh’s predecessor, Justice Kennedy, in a case called Planned Parenthood v. Casey. The court had to examine the constitutionality of the Pennsylvania Abortion Control Act of 1982, which required that a woman seeking an abortion give her informed consent and mandated that she be provided with certain information at least 24 hours before the procedure.

A married woman was also mandated to sign a statement confirming that she has notified her husband about the intended abortion. Justices O’Connor, Souter, and Kennedy delivered the majority opinion noting that “Liberty finds no refuge in a jurisprudence of doubt. Yet, 19 years after our holding that the Constitution protects a woman’s right to terminate her pregnancy in its early stages, Roe v. Wade, that definition of liberty is still questioned.” The majority recognised the unique nature of abortions and the burdens placed on women. The court reaffirmed Roe, albeit with some restrictions. Conservatives attack these rulings on the grounds that expanded substantive due process and privacy rights – on which abortion rights are based – are examples of judicial activism. They argue that the US Constitution does not provide for such rights and that judges should not invent them.

Second, Kavanaugh’s appointment may have serious implications for Trump’s presidency. For instance, Mueller’s Russia investigation might result in a sub poena demanding that the president testifies under oath. If Trump refuses, the dispute will be heard by the SC. The apex court will then have to rule on whether the president can be compelled to testify whilst he is in office. Most observers believe that the liberal justices will rule that the president can be compelled. If the four current conservative justices go the opposite way, Kavanaugh becomes the deciding vote.

And Kavanaugh’s record indicates a deference to executive power. For instance, in the case of Seven-Sky v. Holder, in the context of Obamacare, Kavanaugh wrote, “Under the Constitution, the President may decline to enforce a statute that regulates private individuals when the President deems the statute unconstitutional, even if a court has held or would hold the statute constitutional.”

This is an extremely broad view of the president’s power – as an office empowered to interpret the constitution and take a view different even to the judicial branch, which traditionally is vested with the power to rule on the constitutionality of laws.

In addition, Kavanaugh wrote in a Georgetown Law Journal article published in 1998 that “Congress should establish that the President can be indicted only after he leaves office voluntarily or is impeached by the House of Representatives and convicted and removed by the Senate.”

Similarly, in a Minnesota Law Review article published in 2009, he wrote that the president cannot be prosecuted whilst he is in office. Kavanaugh wrestled with the possibility of a lawless president and the need for checks and balances but concluded that:

… the Constitution already provides that check. If the President does something dastardly, the impeachment process is available. No single prosecutor, judge, or jury should be able to accomplish what the Constitution assigns to the Congress. … The President’s job is difficult enough as is. And the country loses when the President’s focus is distracted by the burdens of civil litigation or criminal investigation and possible prosecution.

This is obviously extremely significant because one of the most debated current questions is whether Trump can be indicted by Mueller if there is evidence of collusion. Other experts, myself included, have opined that the president has broad powers under the constitution – including the power to pardon himself. However, these questions are unsettled because no court has authoritatively ruled on them. The SC has previously ruled that Nixon was not exempted from compelled production of documents and records. Similarly, in Clinton v. Jones, the Court ruled that the president is not immune from testifying in a civil suit.

But the question in Trump’s case would be whether a president can be compelled to testify in a criminal proceeding. If Kavanaugh believes that he cannot be, then Trump’s presidency will be secure and the judge’s views might impact how the president cooperates with Mueller. For instance, Trump might decide to fight it out in court rather than cooperate.

The highly partisan confirmation battle in the Senate will help us to learn more about where Judge Kavanaugh stands on these critical questions. If Kavanaugh is confirmed and takes his seat on the Supreme Court, it will be a decisive win for Trump. Kavanaugh’s nomination may end up as the most important decision Trump has ever made and, in turn, make the judge one of the most powerful men on earth.

Dr. Sandeep Gopalan is the pro vice-chancellor for academic innovation and law professor at Deakin University.

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