Justice Brett Kavanaugh?

Reply Fri 13 Apr, 2012 02:39 pm
Let's just say that Mitt Romney defeats Barack Obama on November 6 and gets to nominate the successors of Anthony Kennedy, Antonin Scalia, and Ruth Bader Ginsburg.

Judge Brett Kavanaugh of the D.C Circuit replaces Anthony Kennedy, Judge Jeffrey Sutton of the sixth (or Diane Sykes of the seventh) replaces Ginsburg after a grueling confirmation fight, and Scalia is able to be replaced by another originalist (say, Steven G. Calebresi).

I know Brett Kavanaugh clerked for Anthony Kennedy, but does anyone know if he is more or less conservative than his old mentor? Would Justice Kavanaugh find himself the new swing vote on the Supreme Court, or move its decisions to the right of John G. Roberts?

Is there an outside chance an Associate Justice Brett Kavanaugh could overturn Roe v Wade EVEN IF John Roberts doesn't sign on to it? Let's just assume for the moment that Jeff Sutton, Steven Calebresi, and Diane Sykes are all votes against Roe (doesn't seem like a big stretch given Sutton's extreme federalism in suggesting the Anerican's with disabilities act is unconstitutional or Diane Sykes public statements against Roe).

Any thoughts?

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Reply Fri 13 Apr, 2012 02:47 pm
Scalia's probably not going anywhere for a while and, even if he is, replacing one conservative with another is probably not going to shift the Court too much. Kennedy, I suspect, is good for another four-year term although maybe not for eight (he's born in '36, so he's 72 - which is not ancient when it comes to the US Supreme Court). I think it's far more likely that Ginsburg would be gone, as she's had cancer twice and is the oldest of the three (she's born in '33; Scalia is born in '36).

My question then would be, of the people you believe would be brought in as replacements, who is the one most likely to be nominated and, most importantly, confirmed?
Reply Fri 13 Apr, 2012 03:46 pm
If it's Mitt Romney or Barack Obama?

If it's Mitt Romney, I'd bet good money that Brett Kavanaugh is the most likely first pick BY FAR. He has a very expansive view of executive power (even suggesting that Presidents can ignore Supreme Court decisions) and was a loyal foot-soldier for the Bush administration. CNN legal analyst Jeffrey Toobin HATES him, but still thinks he's the most likely pick: http://go.bloomberg.com/health-care-supreme-court/2012-03-19/toobin-kavanaughs-constitutional-theory-could-make-him-gop-scotus-pick/

So does Mike Sacks of the Huffington Post in his "Supreme Court Short-List: America's Next Top Conservative Justice" article: http://www.huffingtonpost.com/mobileweb/2011/12/21/supreme-court-short-list-conservative-justice_n_1163178.html

Now, here is where I am weary of a potential Justice Kavanaugh as a conservative. Kavanaugh has NO record on whether he would uphold the made-up "right to privacy" in Griswold v. Conn. that was the basis for the judicial usurpations of Roe v. Wade and Lawrence v. Texas. I'm not saying Kavanaugh believes that Roe is constitutional law, I just don't KNOW that he does ( I would be much more comfortable with Diane Sykes, Steven G. Calebresi, or even Jeffrey Sutton).

Now, the pro-choice groups VEHEMENTLY opposed Kavanaugh's nomination to the D.C Circuit: http://www.prochoice.org/policy/get_informed_active/recent_positions/nominations/kavanaugh_oppose.html

However, they did the same thing when George H.W Bush nominated David Souter to the Supreme Court in 1990: "Stop Souter or women will die" was the clarion call. We all know how that turned out. Souter, like Kavanaugh, had no record on the "right" to privacy.

That's why I asked my question about Kavanaugh. I was hoping someone would know something about how he would probably rule on Roe v Wade and impact the balance of the Court.
Reply Sat 14 Apr, 2012 12:10 pm
For most of my voting life, my president choice has always been a Democrat so that more Republicans are not apportioned to the Supreme Court.


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Reply Sat 14 Apr, 2012 12:15 pm
For most of my voting life, my president choice has always been based on
apportionments to the Supreme Court. Since Nixon, I've always made it a Democrat.


Reply Sat 14 Apr, 2012 08:22 pm
Richard Nixon nominated an unbelievable four justices in his first term, and all but one of them (William H. Rehnquist), turned out to be a liberal judicial activist. Of those four nominees, only Rehnquist didn't accept the right to privacy that Bill Douglas invented in the "penumbras, formed by emanations" of the 4th, 5th, 6th and 9th amendments.

All of Nixon's other nominees (Warren Burger, Lewis, Powell, and Harry Blackmun) not only accepted this invented right, but found it broad enough to include abortion in Roe.

Guess who wrote the opinion in Roe? It wasn't Douglas. It was the Nixon, Republican-appointed, "living constitutionalist" Harry Blackmun. Gerald Ford even nominated John Paul Stevens over then Solicitor General Robert Bork.

It wasn't really until George W. Bush that the vetting process and growth of the conservative legal movement produced a deep enough bench of nominees (like John G. Roberts and Samuel Alito) who would give consistently conservative results. I suppose, even if Brett Kavanaugh believes there is a "right to privacy" in the constitution , that we owe him for his work as Senior Associate Counsel for promoting Samuel Alito and John G. Roberts. A man who called Douglas' framework in Griswold as the "so-called" right to privacy now leads the most powerful judicial body in the world. Conservatives have Brett Kavanaugh to thank for it (even if he doesn't share John Roberts views on the matter).
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