On Sept. 4, District of Columbia Circuit Court Judge Brett Kavanaugh will begin a tough confirmation battle to replace Justice Anthony Kennedy on the U.S. Supreme Court. If Kavanaugh is confirmed in this partisan political climate, do not expect him to receive a filibuster-proof 60 votes in the U.S. Senate. My prediction is that he will be confirmed 52-48. Great for a score in a Patriots-versus-Steelers game – bad for an appointment to a lifetime job.
The Appointments Clause of the U.S. Constitution confers upon the president the responsibility of nominating federal judges, while the Senate, in the “advice and consent” role, is charged with advising the president on the nominations and giving or withholding its support.
In exercising this constitutional responsibility, the president and the Senate leaders of both political parties would meet to ensure the selection of the most confirmable nominee. This practice appears to have worked in the past, when Kennedy was unanimously confirmed in 1988 and Ruth Bader Ginsburg was confirmed by a vote of 96-3 in 1993. Even during the controversial George W. Bush administration, John Roberts was confirmed as chief justice by a vote of 78-22. However, this kind of bipartisanship in the selection of federal judges is apparently gone.
Another practice that seems to have ended was the support among both Republicans and Democrats in the Senate for requiring a minimum of 60 votes to confirm all federal judicial nominations.
In 2013, following Republican filibusters of President Obama’s judicial nominees, then-Senate Majority Leader Harry Reid, a Democrat, reduced the threshold to a simple majority (51 votes) to confirm nominees to the federal District Court and Court of Appeals. The threshold for confirming a Supreme Court justice was reduced to a simple majority four years later by the Republicans, after they took over control of the Senate. Neil Gorsuch became the first justice under the changed rules to receive fewer than 60 votes; he was confirmed by a 54-45 vote.
Lowering the standard for lower-court judges was bad enough, but lowering it for Supreme Court justices is detrimental. It is detrimental because the electorate does not have a direct say in choosing a federal judge and cannot vote that person out. Therefore, it is important for the nation’s U.S. senators to work in a bipartisan manner with the president to choose a candidate who the nation – not just a political base – can rally around.
Moreover, federal judges can have a significant impact on millions of American lives with their decisions. For example, this summer, Maine U.S. District Court Judge John Woodcock sentenced two men to vastly different punishments for the same crime: stalking. One defendant received a sentence of 10 months in prison. The other was sentenced to five years – the maximum allowed – by Woodcock, who said he had “never before seen a stalking crime of such length, intensity, vulgarity, scope, sophistication and impact.”
Turning to Kavanaugh, I am aware that his judicial record does cause alarm for Mainers and others across the country who are passionate about reproductive rights, as well as those who are concerned that his past statements indicate that, if confirmed, he may not be impartial about cases touching on the legal issue of whether a sitting president can be indicted or criminally charged.
However, Mainers should not only scrutinize Kavanaugh’s judicial record but also weigh holistic questions: Will he continue to uphold the integrity of the institution? Will he decide cases based on the law and not some particular ideology?
It is my hope that Sens. Susan Collins and Angus King both will take this approach before casting their votes for or against Kavanaugh.
The Senate also needs to restore the 60-vote threshold for all federal judicial nominations, and future presidents and Senate leaders should put down the partisan knives and come together to choose federal judges. The possibility of having two Supreme Court justices in a row be confirmed with fewer than 60 votes reflects a crumbling process that places the judiciary at risk of having a permanent partisan stain on an institution that should be protected from the influence of special interest groups spanning the political spectrum.
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