By Martha F. Davis
July 10, 2018

In nominating Brett Kavanaugh to the U.S. Supreme Court, President Trump made the cautious choice. Kavanaugh’s nomination was vetted and approved by the Federalist Society, a powerful band of conservative lawyers intent on reshaping government. Just to get on the Society’s list, a candidate must be prepared to overrule Roe v. Wade. And the nomination replaces one white, Catholic, male, Ivy League, straight, appellate judge, with another, neither adding nor subtracting diversity from a Court where women, racial minorities, LGBTQ, non-Yale or Harvard graduates, and Protestants are underrepresented.

Yet in other ways, Kavanaugh’s nomination signals the end of caution by reinforcing the Court’s unrelenting rightward shift—quite a feat, since the current Court is one of the most conservative in the nation’s history. Despite the characterization of Justice Anthony Kennedy as a moderate voice, he bears some responsibility for this rightward drift. In 1992, Kennedy affirmed the central holding of Roe v. Wade, but that was then. More recently, he could not find an impermissible burden on abortion when a safe, late-term procedure was banned, despite the dangers posed for women. We cannot know whether a Justice Kavanaugh would take the last step to overturn Roe—though the Federalist Society apparently thinks that he would. But really, Justice Kennedy should be credited with pushing Roe right up to the brink rather than pulling it away.

Justice Kennedy’s recent opinions on immigrants’ rights and presidential power also contradict his moderate reputation. Just last term, Justice Kennedy voted to uphold President Trump’s travel ban, despite the considerable evidence that it was intentionally directed at Muslims.

In a few areas, however, particularly race-based affirmative action and gay rights, Justice Kennedy has articulated a moderate position joined by the majority of the Court. It is in these areas where the more conservative Justice Kavanaugh would have the greatest impact. Because the Court’s prior jurisprudence may hang in the balance, these areas should shape the Senate’s questioning during the confirmation hearings.

The nominee’s view of precedent is critical, but difficult to explore. Nominees to the federal bench are typically asked vague questions about their view of precedent, and they typically give vague answers. More specificity is possible. How does Kavanaugh feel about decades-old precedents? What about precedents that have been repeatedly reaffirmed in successive decades? Precedents that boast popular support? Precedents that were decided by 5-4 votes? What about precedents, like Roe and Obergefell (which upheld same-sex marriage), that individuals have relied on to make important, sometimes irreversible choices about their lives?

For all his faults, conservative icon Justice Antonin Scalia more than once held his nose while following a precedent with which he personally disagreed. Would Kavanaugh do that? Would he be concerned about the impact on the Court’s legitimacy if he didn’t recognize some law as settled? And if so, what is settled? Brown v. Board of Education? Or Griswold v. Connecticut, recognizing a privacy right in contraception use? Or Lawrence v. Texas, Justice Kennedy’s 2003 decision that supported his later rulings on sexual orientation?

Before Justice Kennedy, the Supreme Court seat that Kavanaugh would fill was occupied by Justice Lewis Powell. Nominated by President Nixon, Justice Powell was also the swing vote during his time on the Court. Kavanaugh is under no obligation to follow in the footsteps of the Republican-nominated swing justices who came before him, who sometimes chose a more moderate, middle path in areas of civil rights and civil liberties. But in this time of political polarization, the middle is more important than ever. And before they vote on Kavanaugh, U.S. senators should make sure that he at least knows where the middle is.

Martha F. Davis is associate dean for experiential education and professor of law at Northeastern University School of Law.

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