The prognosis for Trump’s SCOTUS nominee is grim for progressives

U.S. President Donald Trump’s selection of Brett Kavanaugh (53) for the seat in the Supreme Court of the U.S. (SCOTUS), vacated by Justice Anthony Kennedy (81) has been among the most conventional decisions of an unconventional President. Unlike the radical policies that Mr. Trump has applied in areas such as immigration and trade, his nominee to the nine-member court is a staunch Washington insider, a former legal staffer in the George W. Bush White House, and a man who will be, according to consensus, a firm adherent to mainstream Republican values.

On the upside, Mr. Kavanaugh holds an Ivy League degree and has clerked with Justice Kennedy himself. However, troubling questions are being raised about whether Justice Kennedy was right to hold a private meeting with Mr. Trump ahead of the nomination and, according to some reports, push strongly for Mr. Kavanaugh’s candidacy. Further, it remains to be seen whether Mr. Kavanaugh will be smoothly confirmed by a majority of the Senate. The road ahead might be bumpy, firstly because the Senate must get hearings done by early November, for if they do not, they will have to reckon with the mid-term elections. If Democrats increase their seat count, that could put the brakes on the nomination or derail it.

Second, Mr. Kavanaugh will have to face tough questions on whether the U.S. President is immune to criminal prosecution. It is not unimaginable that a SCOTUS that includes Mr. Kavanaugh will have to rule on everything from whether the Mueller probe can enforce subpoenas to issues of discovery in the Stormy Daniels lawsuit and the Trump Foundation’s murky charitable expenditures. Mr. Trump’s nominee helped write the Kenneth Starr Report calling for the impeachment of former President Bill Clinton. Does he still stand by sections of that report which argue that the President can be impeached for lying to the public and his staff?

The more troubling question for liberal-minded Americans is how far their SCOTUS will tilt to the hard right. Currently the court is weighed 5-4 in favour of the conservative wing. Chief Justice John Roberts has occasionally voted with the liberal side, as has Justice Kennedy, notably in the 2015 ruling upholding marriage equality. Could Mr. Kavanaugh be a tipping point in the denying of women’s reproductive rights as enshrined in Roe v. Wade, or marriage equality principles protected by Obergefell v. Hodges?

Given his past rulings on subjects such as assault weapons bans, religious liberty rights, and the constitutional rights of large financial corporations, the prognosis for Mr. Kavanaugh’s successful nomination is grim for progressives. In hard-fought and well-settled debates over abortion, gay rights, voting rights, and campaign finance laws, Mr. Kavanaugh may be the Supreme Court justice who turns the clock back on a generation of reforms that nurtured a more liberal, inclusive ethos.

The writer is an Associate Editor at The Hindu

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