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‘Advice and consent’ is not an excuse to rubberstamp

Thursday, July 12, 2018

It would be the height of naivet to believe that Republican President Donald Trump and the GOP majority in the U.S. Senate would ever consider placing anyone other than a true conservative on the U.S. Supreme Court. Liberals need not apply. Middle-of-the-roaders shouldn’t hold their breaths.

After all, in the 2016 presidential election, Trump signaled his intention to move the Supreme Court, in particular, and the federal judiciary, in general, even further to the right.

He went so far as to say that Roe v. Wade, the landmark Supreme Court decision giving women the right to abortion, would be overturned as a result of the justices he appoints.

In the one year and seven months he has been in office, Trump has won Senate confirmation for one Supreme Court justice, Neil Gorsuch, who replaced the late Antonin Scalia, and more than 40 lower court judges.

They’re mostly conservatives and have been embraced by the GOP majority in the Senate. Democratic opposition is largely ignored.

The idea that the Senate would simply rubberstamp Trump’s nominees should send up red flags. It means the Senate isn’t fulfilling its constitutional role of “advice and consent,” which is an important check on the president’s constitutional power to appoint executive and judicial branch officials, as The Hill newspaper put it not too long ago.

“The Senate is charged with advising the president on his nominations and ultimately giving or withholding its consent. Yet the current Senate majority seems determined to weaken the Senate’s role and leave the president’s appointment power essentially unchecked,” the newspaper said.

History has shown what happens to nations when leaders have unchecked power.

President’s nominee

It’s against that backdrop that we focus on President Trump’s nomination of appeals court Judge Brett Kavanaugh, a solid conservative with deep political roots in Washington, to the Supreme Court. If confirmed by the Senate, Kavanaugh would replace Justice Anthony Kennedy, who is retiring.

As the Associated Press put it, “Kavanaugh would be a young addition who could help remake the court for decades to come with rulings that could restrict abortion, expand gun rights and roll back key parts of ‘Obamacare’.”

It is noteworthy that the nominee once served as a law clerk to Kennedy, who was a swing vote on the nine-member court on key issues, including abortion and gay rights.

The Senate hearings on Kavanaugh’s nomination are an opportunity for lawmakers to explore his judicial philosophy, review his record as a judge on the Court of Appeals for the D.C. Circuit and to find out what he thinks of his former employer, Justice Kennedy, who makes no apologies for the positions he has taken.

During the White House ceremony to announce his choice, the president said this about Kavanaugh:

“He is a brilliant jurist, with a clear and effective writing style, universally regarded as one of the finest and sharpest legal minds of our time. There is no one in America more qualified for this position, and no one more deserving.”

In his remarks, the nominee pledged to preserve the Constitution and said:

“My judicial philosophy is straightforward: A judge must be independent and must interpret the law, not make the law. A judge must interpret statutes as written, and a judge must interpret the Constitution as written, informed by history and tradition and precedent.”

Kavanaugh’s reference to “precedent” could be a good sign in that retiring Justice Kennedy also believes past court rulings are important.

Although Republicans have a 51-49 advantage in the Senate, the absence of Sen. John McCain, R-Ariz., who is battling brain cancer, makes Kavanaugh’s confirmation a guessing game.

There are two Republican senators, Susan Collins of Maine, and Lisa Murkowski of Alaska, who are being watched closely because of their pro-abortion rights stances and their votes against the repeal of the Affordable Care Act – “Obamacare.”

Democrats are hoping that the two moderate Republicans will help block Kavanaugh’s confirmation, but the chances of that happening are slim.

Therefore, the opposition should use the Senate hearings to delve into his record of service, both in the federal government and the courts.