When the United States Supreme Court decided in favor of Masterpiece Cake-shop last month, allowing the Lakewood, Colorado business to refuse to make a wedding cake for a Denver gay couple based on religious grounds, Democrats and LGBTQ allies decried the role played by the newest Supreme Court Justice, Neil Gorsuch. Their worst nightmare had come true – Justice Antonin Scalia’s replacement ruled with the majority in reinforcing conservative judicial positions.
Gorsuch was appointed by President Donald Trump and confirmed by a Republican-controlled Senate only after President Barack Obama’s appointee, Merrick Garland failed to receive a vote by the GOP Senate. Garland’s U.S. Senate process had been the longest in history, lasting nearly ten months and expiring only after Majority Leader, Mitch McConnell, refused to hold a vote on the nominee. Garland would have replaced Scalia, who was known as the most conservative member of the bench. The vote refusal allowed the clock to run out on the nomination and provided a newly elected Trump to appoint Colorado native Gorsuch.
When Scalia died, Justice Anthony Kennedy became the court’s senior most judge. Recently, Kennedy reported he would step down, allowing Trump to appoint his second Supreme Court member in less than a year. Kennedy’s retirement will become official on July 31st.
Kennedy was nominated by President Ronald Reagan in 1987 and was confirmed by a unanimous Senate vote in February 1988. Kennedy wasn’t Reagan’s first choice – Robert Bork was refused confirmation by a Democratically-controlled Senate in a famous process that led to naming attacking nominees on political philosophy and character as “borking.”
Kennedy’s replacement should have a much easier path through the U.S. Senate since that chamber is controlled by the same party holding the presidency. Still, some Republicans have warned that potential appointees who do not favor certain policy issues will not get their support.
Kennedy has often been a swing vote in 5-4 court votes. From reproductive rights to civil unions, Kennedy has taken a somewhat libertarian stance, often siding with more liberal members of the court. In 2015, Kennedy wrote the majority opinion that legalized gay marriage across the country. In that opinion, Kennedy said, “No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were… Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.”
Many liberal and moderate policy makers worry that a Kennedy replacement would lead the court to restrict personal liberties that he helped keep in place. On Sunday, ABC interviewed moderate Maine Republican, Susan Collins on ABC This Week. Collins expressed her wish that President Trump would “broaden his list” of nominees and that any appointee who would support overturning Roe v Wade (a woman’s right to choose reproductive freedom) “would not be acceptable to me” and would not receive her support. The current Supreme Court vote in favor of a woman’s reproductive rights now stands at 5-4 in favor of women’s rights.
In political interviews, Democratic Senator, Elizabeth Warren expressed worry that Kennedy swing votes would go against more liberal public policy. Warren mentioned the possibility of the Supreme Court criminalizing abortion, disallow pre-existing conditions for healthcare plans, lifting environmental protection and breaking up unions to favor corporations over the interests of workers.
Democrats hope that Trump’s nominee is a moderate Republican capable of casting swing votes like Kennedy, in favor of social issues. However, Trump has promised that his next Supreme Court appointee will be very conservative.
In a Senate Judiciary Committee meeting last week, New Jersey Senator Cory Booker took a different perspective, bringing up a potential conflict of interest if the President is nominating a judge who could be called upon to rule on the Mueller investigation of Trump colluding with Russia. In that meeting Booker said, “The president of the United States is a subject of an ongoing criminal investigation...that could end up before the Supreme Court.” Booker suggested that because the President has conducted “loyalty tests,” that any Supreme Court nomination should not take place until the investigation has ended.
Liberal filmmaker, Michael Moore asked Democrats to hold off any confirmation vote until after November. He called on protesters to prevent a Supreme Court vote. On Bill Maher’s show, Moore said, “I’ll join a million other people surrounding the United States Capitol.”
Trump has said he will present his Supreme Court pick next week to the U.S. Senate for confirmation. Among his five leading contenders, two are women including former Notre Dame law school professor Amy Coney Barrett. The mother of seven is 46 years old, highlighting the Trump strategy to nominate a young judge who can remain on the court for many years and issue crucial conservative opinions. Barrett is already political battle tested having gone through a tense hearing
Colorado Court of Appeals judge Allison Eid has been mentioned as a potential contender. At 53, she would be on the younger side of Supreme Court members and is widely respected in the Colorado legal community. Eid filled the Appeals Court vacancy created by Gorsuch’s departure for the U.S. Supreme Court. If Eid followed in Gorsuch’s footsteps to the Supreme Court, she would be the second Colorado resident to sit in the country’s highest court. She is a Washington State native and served on the Colorado Supreme Court for 11 years.
Both Barrett and Eid might have political optics on their side. With a looming fight over Roe v Wade and a woman’s right to choose, pundits claim abortion rights activists will be hesitant to attack a woman willing to strike down the legality and side with the conservative faction of the bench. In addition, thus far Trump’s judicial nominations have been overwhelmingly white males. If either Barrett or Eid is chosen for the U.S. Supreme Court, she would be only the 5th woman to fill a seat on the court.