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Brief #64—Civil Rights

Policy Summary
On July 9, 2018, President Donald J. Trump nominated Judge Brett M. Kavanaugh to become an Associate Justice of the Supreme Court of the United States. Judge Kavanaugh was nominated to replace Associate Justice Anthony Kennedy who stepped down after thirty years on the Court. President Trump’s nominee was then sent to the U.S. Senate which only needs a majority vote to approve the nomination. Prior to the whole chamber voting on the selection, the Senate Judiciary Committee, with twenty-one members, reviews the nomination and decides if the person should be referred to the entire Senate chamber for a vote. The committee began hearings on Judge Kavanaugh’s nomination on September 4, 2018 and proceeded with questions for Judge Kavanaugh about notable Supreme Court cases and other areas of constitutional law. On September 27, 2018, the committee held a hearing to discuss allegations by Dr. Christine Blasey Ford that Judge Kavanaugh sexually assaulted her while they were high school students. The committee eventually voted along party lines (11 Republicans in favor and 10 Democrats against) to submit the nomination to the full Senate. However, a vote by the entire chamber was delayed due to a request by Senator Jeff Flake from Arizona that a supplemental FBI investigation be undertaken, specifically to the additional allegations from different women that emerged prior to and after Dr. Christine Blasey Ford’s testimony before the Senate Judiciary Committee. LEARN MORE

Analysis
The hearing into the nomination of Judge Kavanaugh to the Supreme Court should have been a routine confirmation until it was rocked by allegations of sexual assault by one of Judge Kavanaugh’s high school acquaintances. What those allegations did was expose the extreme politicization of the selection of judges to the United States judiciary and what the long lasting effects of this could be. Judges are supposed to be impartial and handle the facts and cases as presented to them at trial and to interpret the words and meaning of statutes as presented in the appellate record. Problems begin to arise when judges start to make policy decisions and interpret statutes according to their own political beliefs and personal worldview. The legislative branch in each individual state and Congress at the federal level are charged with policy making and if any changes need to be made to existing law, then in theory, citizens should take their case to their respective legislatures.

However, recent years have seen a frustration with the work of state legislatures and Congress. There is a general feeling that elected representatives are not responsive to the wishes of their constituencies and so taking an issue to court is seen as preferable than “going to your Congressman.” Courts, especially the Supreme Court, are now seen as the last word on hot button issues. Knowing that any issue that reaches the Supreme Court can become the final word at the appellate level on policy issues has only raised the stakes as to which judges will be permitted to sit on the court.

Religious people with objections against LGBT and same – sex marriage have seen the Supreme Court invalidate anti – sodomy laws in 2003 in Lawrence v. Texas and allow same – sex marriage in 2015 in Obergefell v. Hodges. Civil rights activists have touted the work of the Voting Rights Act of 1965 only to see the Supreme Court invalidate one of the major provisions of that statute in 2013 with Shelby County v. Holder, which weakened that voting protection law considerably. And in Citizens United v. FEC in 2010, the Supreme Court overturned established law going back more than fifty years and opened the door to unlimited campaign contributions from corporations.

What judges are being asked to do is take sides on a policy issue when they should instead strive to be impartial. Instead of calling your representative – who may or may not ignore you – to make a policy change, the preferred route now is to go to court and have a judge rule on the merits of a policy that probably should have been heard by the legislature. This is why the selection of judges and Supreme Court justices has become such a bruising fight. Their personal beliefs or worldview could very well have major consequences as to the validity of policy issues as the same sex, civil rights and campaign finance cases mentioned above make clear. It is unclear if these sexual assault allegations will derail Judge Kavanaugh’s nomination to the highest court in the land but knowing that he may have a say on important issues – the future of abortion or a ruling on whether or not a president can be indicted – has caused Republicans and Democrats to not give an inch and play for keeps and see this fight for a Supreme Court seat all the way to the bitter end. LEARN MORE

  • Engagement Resources:
  • Brennan Center for Justice – resource for info and topics on the federal judiciary.
  • Cato Institute – research institute’s blogpost on the effects of “politicizing the judiciary.”

This brief was compiled by Rod Maggay. If you have comments or want to add the name of your organization to this brief, please contact Rod@USResistnews.org

Photo by Claire Anderson

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