The Bucknell Institute of Public Policy (BIPP) hosted a forum on Supreme Court Justice nominee Brett Kavanaugh and the future of the Supreme Court on Thursday, Sept. 13. Associate Professor of Political Science Chris Ellis, Professor of Political Science Scott Meinke, and Visiting Assistant Professor of Political Science Eleanor Schiff each shed light on the confirmation process and the history of the Court before answering questions from the audience. This forum was held prior to the publication of sexual assault accusations against Kavanaugh from Christine Blasey Ford, a professor at Palo Alto University who knew Kavanaugh in high school. This article reflects the panelists views at the time of the forum, so these allegations did not factor into each professor’s comments. 

Professor Schiff explained that the confirmation process for justices has become increasingly politicized. While Justices Ruth Bader Ginsburg, Anthony Kennedy (whom Kavanaugh has been nominated to replace), and the late Antonin Scalia each received the support of over 90 senators in their respective confirmation votes, more recent appointees have been confirmed mainly along party lines. For instance, Justices Sonia Sotomayor and Elena Kagan received the support of less than 70 senators.

Justice Neil Gorsuch, who joined the bench in April 2017, was confirmed by a mere 54-45 vote.

According to Professor Ellis, Kavanaugh’s confirmation hearings were abnormal for a number of reasons. For one, Kavanaugh, an ideological conservative, would shift the ideological balance of the court to the right. Previously, Kennedy acted a swing vote due to his tendency to side with the court’s more conservative justices on economic and governmental issues and with the more liberal bloc on social issues.

Ellis also noted that Kavanaugh’s confirmation is all but guaranteed, given that almost all Republican Senators have voiced their support for Kavanaugh. Moreover, there are 10 Democratic senators running for re-election in states that President Trump won in the 2016 election, raising the stakes for their confirmation votes. “Democrats are defending an absolutely brutal senate map this year,” Ellis said. “There are lots of states where a vote against Kavanaugh might well be a career-killer.”

In contrast, Ellis explained that the liberal base of the Democratic party “wants a fight,” even if Kavanaugh’s confirmation is inevitable. He referenced a legal aphorism that captures the essence of the Democrats’ behavior during Kavanaugh’s hearings: “If you have the facts, you pound the facts, if you have the law, you pound the law,” Ellis said. “If you have neither, you pound the table.”

Additionally, Ellis contended that much of the noise around the Kavanaugh hearings stemmed from the presidential ambitions of Democrats on the Senate Judiciary Committee.

Meinke suggested that the addition of Kavanaugh to the Supreme Court would not make much of a difference on issues where the court has already been moving in a conservative direction.

Meinke believes the court will take more cases on such issues, especially abortion rights, and will allow restrictions and laws set by states. However, he took issue with the idea that the court’s shift to the ideological right could lead to the outright reversal of major cases on social issues such as the death penalty, gay rights, and abortion. “I think those holdings are probably not likely to be undone, primarily because I think there’s at least one justice on the conservative side who has not been supportive of those decisions when they were made, but would not go so far as to overrule them,” Meinke said.

That justice, according to Meinke, is Chief Justice John Roberts. Although Roberts is markedly conservative and would not act as a true swing justice, Meinke thinks he will limit the extent that the court moves in a conservative direction. “He is especially concerned with the court’s legitimacy and he’s done some things, like his famous vote to uphold the Affordable Care Act in 2012, that strike me as being motivated in part by wanting the court to not be perceived as political, wanting the court to not be perceived as moving in radical directions too quickly,” Meinke said.

In addition, Meinke echoed Ellis and Schiff’s observations on the relative importance of Kennedy’s retirement. “With the departure of Anthony Kennedy, this is the departure of the last swing justice during this period of 49 years where the court has been going in a conservative direction, but has always had a swing justice,” Meinke said.

Schiff compared Kavanaugh’s experience to that of Roberts, who worked in the George H. W. Bush administration. Schiff rejected the notion that President Trump nominated Kavanaugh to protect him if he were impeached. “I think both [Roberts and Kavanaugh] are very principled people,” Schiff said. “If there were evidence of wrongdoing, they would see it as their duty to target executive privilege.”

“I think this insinuation that there was a quid pro quo if Trump were to be impeached that Kavanaugh would uphold that is not true,” Schiff said.