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SCOTUS:The Next Trump Nominee – Brett Kavanaugh

There are ten people most powerful in the United States of America.  They are the President of course and the other nine are:

THE JUSTICES OF THE UNITED STATES SUPREME COURT

We are ruled by them.  The decisions they make ultimately affect our lives, show us or force us how to live and ultimately decide through interpretation the meaning of any law or the determination of any so-called Constitutional right.

The Supreme Court is presumed to be objective, but in fact, it is not.  When the court is fully appointed, there are nine justices so that every decision will have a majority.  But in so many cases, the five justices of the nine make decisions one way, for the other so that all it takes is the opinion-vote of five Supreme Court justices, JUST FIVE and we the people are told how to live.

The composition of the present Supreme Court seems equally divided, four so-called liberal justices and four conservative.  Those who vote conservative in almost every case are justices Thomas, Alito, Roberts and Gorsuch.  Those voting liberal are Ginsburg, Kagan, Sotomayor and Breyer.  Then there is Justice Kennedy who is regarded by all as the so-called swing vote, unpredictable, perhaps having voted for conservative positions for the most part, but very likely a wildcard in certain liberal cases.  Justice Kennedy resigns and moves on July 31, 2018.  Now comes a new nominee from President Donald John Trump and let the political wars begin.  Democrats and liberals have vowed to fight this nomination any way they can and to defeat it.  So says Minority Leader Chuck Schumer.  But Majority Leader Mitch McConnell vows the very same determination to confirm the new justice, whatever it takes.  It seems as though we just finished senatorial confrontation and argumentation with regard to the nomination and confirmation of Justice Neil Gorsuch.  Now, here it comes all over again.  So, my fellow Americans, let the political warns begin!

The Wall Street Journal has stated that this consequential jurist, Justice Kennedy “has done the country a favor by retiring.”  The journal notes that Justice Kennedy’s jurisprudence has provided the fifth crucial vote in numerous cases defending the First Amendment’s right to free speech and religious liberty.  Kennedy prioritized individual liberty even when it clashed with tradition.  Justice Kennedy was appointed by President Ronald Reagan, Reagan presuming that Kennedy was in fact a conservative.  Reagan was mostly right about Kennedy, but not altogether.  Kennedy’s vote might have seemed to have been inconsistent for on the one hand, he was diametrically opposed to ObamaCare as being a violation of the Commerce Clause.  On the other, Kennedy was the fifth or swing vote which found in our Constitution the brand new right of gays to marry.  It was difficult in almost every key case to determine how in fact Kennedy would vote.

That led Justice Sonia Sotomayor to state:

“There is no doubt that Justice Anthony Kennedy had a most significant effect on the Supreme Court and its decisions.”

And, he surely did.

But the resignation of Kennedy was in fact a “favor” for the country, at least for conservatives for it gave President Trump the opportunity to nominate rather than Hillary Clinton or the possibility of a Democratic President nominating in 2021.  Trump went to work identifying potential candidates with the help of the Federalist Society, and the Heritage Foundation and with the sagacious advice of Leonard Leo the Federalist Society Executive who steered the decision making for Justice Gorsuch’s selection for the Supreme Court.  This august group identified some sterling candidates for Justice.

The first was Brett Kavanaugh.   Kavanaugh has spent the last decades on the country’s second most powerful bench, the United States Court of Appeals for the D.C. Circuit.  Appointed by President George W. Bush, Kavanaugh indicated that he subscribes to the late Justice Scalia’s maxim that a judge’s job is to interpret law, not to make law or policy.  Kavanaugh believed that the Judicial Branch needs simpler, more consistent methods for sorting out constitutional controversies, believing that the law had become too manipulated and was leaving state regulatory powers unchecked.  When a candidate like Kavanaugh identifies with Justice Antonin Scalia, one can expect decision making which truly abides by the Constitution.

A second finalist was Judge Joan Larsen nominated by President Trump to the Sixth Circuit Court of Appeals in May of last year.  Judge Larsen had served as an associate Justice on the Michigan Supreme Court.  The philosophy of Justice Larsen could be summarized in this statement of hers:

“Judges should interpret the laws according to what they say, not according to what the judges wish they would say.”

Sounds again like another Constitutional conservative candidate, does it not?

And then there was candidate finalist Justice Raymond Kethledge who was appointed to the Sixth U.S. Circuit Court of Appeals by President Bush in 2007.  Kethledge has had a most distinguished record on this Circuit Court, a man who is brilliant, a true legal scholar and the writer of very convincing and Constitutional opinions.

And then there was another final candidate one Amul Thapar nominated by Trump to the U.S. Court of Appeals for the Sixth Circuit in 2017 and confirmed.  Mitch McConnell referred to Judge Thapar as the second South Asian American judge to serve on a federal Circuit Court.  McConnell believed wholeheartedly that Thapar was indeed a “qualified judge with an impressive legal mind.”

And then, there was another final candidate for nomination by President Trump, one AMY CONEY BARRETT, remember her?  She was that law professor from the Roman Catholic Notre Dame University, a professor in whom, in the words of Senator Dianne Feinstein of California:

“The dogma runs deep.”

Coney, against every warning and prohibition by the Constitution, was skewered in confirmation hearings by liberal and radical senators for her faith.  That disgusting bias notwithstanding, Coney was indeed affirmed and appointed to the Seventh U.S. Circuit Court of Appeals in May 2017.  Coney was highly intelligent, an excellent student of the law, and one who firmly believed that the law should be applied as-is no matter the faith or belief of a justice.

And then there was candidate and potential nominee Thomas Hardiman.  Judge Hardiman was the runner-up choice for the Supreme Court vacancy as a result of the death of Antonin Scalia in 2017, runner-up to Justice Neil Gorsuch.  Hardiman had joined the third United States Circuit Court of Appeals in 2007 when appointed by President Bush and served with extreme distinction.  Hardiman would have made an excellent Supreme Court Justice.

And finally, on the list of seven finalists was Thomas Lee of Utah, an Associate Justice of the Utah Supreme Court for the past eight years.  As with others, this man had a brilliant legal mind, wrote very incisive and penetrating opinions and was highly respected by his judicial peers state and federal.

What an incredible list of candidates, all seven of them fully qualified.  Any one of these excellent candidates would have been a top-notch addition to the United States Supreme Court, if and only if he or she could survive the brutal confirmation hearings to come.

It is believed that President Trump called Chuck Schumer, leader of the Minority Democrat Party and the Senate to seek his counsel.  In a brief conversation, Schumer warned Trump that no candidate nominated should ever has as an objective doing away with Roe v. Wade and abortion rights and the newly adopted Constitutional principle of gay marriage.  In short, said Schumer, those cases definitively decided the law, STARE DECISIS and should not be modified in any way.  It will be interesting to see how the nominee approaches those issues which will be sure to arise in the confirmation hearings.

President Trump chose Brett Kavanaugh as his favorite nominee for the ninth Justice of the United States Supreme Court.  This good man has spent the last decade on the country’s second most powerful bench, the U.S. Court of Appeals for the D.C. Circuit as a George W. Bush appointee.  Kavanaugh has publicly stated that he subscribes to the late Justice Scalia’s maxim that a judge’s job is to interpret laws, not to make law or policy.  In his learned legal essays and speeches, Kavanaugh has argued that the judicial branch needs simpler, more consistent methods for sorting our Constitutional controversies, believing that the law had become far too manipulated and was leaving state regulatory powers unchecked.  It will be most interesting to see how Kavanaugh votes and decides if in fact he is confirmed.

The Court after Kennedy will indeed be most interesting.  Theoretically, if Kavanaugh is confirmed, the Supreme Court will have a decidedly conservative bent, with five justices labeled as conservative and four as liberal.  That could change the course of jurisprudence and legal decision making for years to come.  But many believe that there will be no radical departure to the right as a result of Kavanaugh’s confirmation.  For there remains Chief Justice John Roberts who can be himself both a legal and political wildcard.  Roberts will certainly not want the court to overturn the gay marriage case so soon after it was decided so that the court, his Supreme Court does not seem too political.

And the same with Roe v. Wade.  That has been the law of the land for almost one-half century, itself decided by a 5-4 vote and it is highly unlikely that the Roberts Court, led and directed by John Roberts in terms of decision making would overrule STARE DECISIS on a 5-4 vote.  Democrats and liberals, in terms of their two chief worries and concerns seem to have little to worry about in that regard, however unfortunate that may be.

So, the legal battles begin my fellow Americans.  Do they ever.  Senate Majority Leader Mitch McConnell, Republican from Kentucky, has promised to hold the hearings as soon as possible.  They will be rough and tumble, even brutal.  Kavanaugh may be subject to a tax both personal and judicial even unfair and demeaning.  But, such is life in Washington, D.C.  Civility is long gone, seemingly never to return.  We should watch with interest these debates, and hearings, and attacks and both hope and pray that the RIGHT DECISION will be made.

Kavanaugh is indeed the right man for the job.  He would make an outstanding Justice of the Supreme Court and one for years to come.  I for one hope his confirmation takes place.

And then there is Justice Ginsburg, and Thomas middle 80s in age and perhaps themselves near retirement.  Wouldn’t it be fascinating if President Trump had the opportunity to nominate four candidates for the Supreme Court?  That would of course would be a modern day record if not one for all times.  But, that one for another day.  Onto the Kavanaugh confirmations and may the right decisions be made for our great country, our very special Supreme Court, and most importantly of all, for:

WE THE PEOPLE