IMAGE: CNS photo/Larry Downing and University of Notre Dame handout via Reuters
By Steve Larkin
WASHINGTON
(CNS) — President Donald Trump has the chance to reshape the Supreme Court by
filling the vacancy created by Justice Anthony Kennedy’s retirement.
Replacing
Kennedy, who is Catholic and has been on the court since 1988, with anyone on
his list of potential nominees will probably turn the court to the right on social issues and leave it
about where it is on economic issues, according to legal experts who spoke to
Catholic News Service.
Six
judges’ names that have appeared on many of the reported shortlists include two
Catholics: Brett Kavanaugh, of the D.C. Circuit Court of Appeals and Amy Coney
Barrett, of the 7th Circuit; and Amul Thapar, Joan Larsen and Raymond Kethledge,
all of the 6th Circuit; and Thomas Hardiman, of the 3rd Circuit.
Trump said he will announce his nominee July
9.
“Kennedy was a justice who occupied the
middle of the court, and he was sometimes unpredictable, but he was strongly
committed to freedom of speech, federalism and gay rights,” said Michael
Moreland, a professor of law and religion and director of the Eleanor
H. McCullen Center for Law, Religion and Public Policy at Villanova University,
a Catholic university in Pennsylvania.
“His involvement in
decisions related to gay rights is certainly the thing he’s most famous for,”
he added.
Boris
Heersink, an assistant professor of political science at Jesuit-run Fordham
University in New York, also said that Kennedy probably sees his rulings on
LGBT issues as the main part of his legacy.
Heersink
said that Kennedy’s main motivation for stepping down from the court was an
81-year-old man’s wish to retire. He also said that since
same-sex marriage seems to be settled law, and the idea of overturning
Obergefell v. Hodges has not been a big part of conservative discourse
recently, Kennedy probably felt that his legacy there would be secure under a
Republican president.
“He’s
sort of in the middle, but closer to the conservative justices than the liberal
justices. He might prefer a Republican pick his successor,” Heersink said. Stepping
down under a Republican president would probably lead to his replacement by
someone closer to his views on economic issues and First Amendment
jurisprudence.
“He
wasn’t always predictable, but Kennedy very often voted as an originalist,”
said Cathleen Kaveny, a professor of theology and law at Boston College. She
defined originalism as a theory of constitutional interpretation which says
that jurisprudence is “bound to, in some way, what the Framers thought about
the Constitution.”
On abortion, “Justice Kennedy
was very much in the middle of the court,” Moreland said.
While many social conservatives
are hoping Trump’s pick will be an opponent of Roe v. Wade and lead a movement
on the court to overturn that decision, Moreland said that was unlikely.
Instead, he said, the thinks the court “would be more open to the states
regulating and restricting abortion.”
Kennedy also was often in the
middle of the court on end-of-life issues.
While
he voted against removing feeding tubes and assisted suicide in some decisions,
he also was part of a majority in Gonzalez v. Oregon, in which the court found
that the Controlled Substances Act could not be enforced against doctors who,
following the Oregon state law, prescribed medicine that would allow patients
to end their life.
Kennedy
also voted in favor of several restrictions on the use of the death penalty
while on the court, which prevent its use against minors and people with
intellectual disabilities.
Heersink
said that replacing Kennedy with any of the people on Trump’s list would
probably not affect the court’s decisions on economic issues.
“There
might not be that much of a difference. Perhaps the decisions will be written
in a bit more conservative way,” he said. “In all the recent decisions, Kennedy
was on the conservative side.”
“Kennedy
moved the court in a strongly pro-free speech direction,” said Moreland.
In
some of the more famous cases decided while Kennedy was on the court, such as
the recent Janus v. AFSCME and Citizens United v. FEC, Kennedy’s bent in favor
of free speech and his economic conservativism came together — in Janus, to
decide that requiring public sector workers who are not part of a union to pay
“fair share” dues violated their rights to free speech, and in Citizens United,
finding that the free speech clause of the First Amendment prevents restrictions
on independent expenditures by corporations, labor unions, and other
associations.
Moreland
believes that any of the people on Trump’s list would be successfully
nominated. “I don’t see how the Democrats could stop the nomination,” he said.
“Everyone on the list has an excellent reputation.”
Heersink
also mentioned that anyone Trump might nominate would know what they have to
say in a Senate hearing in order to be confirmed.
“If
you want to have a chance at the Supreme Court you have to say, ‘I don’t have
pre-existing ideas about what I’d do in a hypothetical case,'” he said.
He
also mentioned that Trump’s nominee would probably not have a record of
extensive writings or decisions about abortion, since such a record might make
it difficult for them to make their way through the nomination process.
“If
you think you might have a shot at the Supreme Court in the future and want to
preserve it, you have to behave in a certain way as soon as you get out of law
school. Maybe even while you’re still in law school,” Kaveny said.
Sen. Susan Collins, R-Maine, has said that she will oppose any
nominee who shows “hostility” to Roe.
“Roe v. Wade is a
constitutional right that is well established, and no less an authority than
Chief Justice (John) Roberts said that repeatedly at his confirmation hearing,” she
said in an interview with CNN.
Sen. Lisa Murkowski, R-Alaska, is the other Republican in
the Senate who supports keeping abortion legal, and her vote also could end up being
necessary for the nominee’s success.
Moreland said that political pressure on Democrats
in red states could lead them to vote for Trump’s nominee.
Three Senate Democrats up for re-election in
2018 in states that cast their electoral votes for Trump — Joe Donnelly of
Indiana, Heidi Heitkamp of North Dakota and Joe Manchin of West Virginia — voted
to confirm Justice Neil Gorsuch in 2017, and they might vote for Trump’s
nominee for similar reasons.
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