Michigan SCOTUS experts react to Trump's nominee

By Thomas Franz
BridgeTower Media Newswires
When U.S. Supreme Court Justice Anthony M. Kennedy announced he would soon be retiring, it gave President Donald Trump an opportunity to solidify a conservative-leaning bench.

To accomplish that, he has nominated Judge Brett Kavanaugh of the U.S. Court of Appeals for the District of Columbia Circuit.

“Republicans have wanted a conservative court. Judge Kavanaugh is a conservative judge with his judicial philosophy, so with him on the Supreme Court, there will be a solid conservative majority,” said Robert Sedler, a constitutional law professor at Wayne State University Law School.

Before sitting on the D.C. Circuit bench, Kavanaugh was White House staff secretary for the George W. Bush administration.

Despite his conservative tendencies, Kavanaugh has said he has respect for precedent.

“Certainly, the Democrats want a justice who is going to follow precedent because many of the precedents have been in the liberal direction such as Roe v. Wade and marriage equality. The court very rarely overrules a precedent. It only does so when the precedent has been compromised by subsequent decisions,” Sedler said.

John Bursch of Bursch Law PLLC in Caledonia has argued before the U.S. Supreme Court more than 10 times. As it relates to Kavanaugh’s confirmability, Bursch said the nominated judge appears to get along well with everybody in his community, but is still considered right of center politically.

“He comes across as a genuine, humble person who really is committed to family and community,” Bursch said of Kavanaugh. “Kavanaugh is more of a compromise pick but undeniably conservative, and certainly more conservative than Justice Kennedy.

“Because Justice Kennedy was the swing vote in so many cases over the last seven or eight terms, any of those cases where Judge Kavanaugh is involved has a chance to move a little more to the right.”

On the issue of abortion, Bursch said it would be tough to tell how far to the right Kavanaugh would go if faced with that kind of case. He cited a recent case to come through the D.C. Circuit that involved the federal government’s refusal to give consent to an illegal minor immigrant to get an abortion.

“Judge Kavanaugh did dissent the majority decision which allowed the woman to go to the abortion clinic. However, he declined to join another dissent that said the woman didn’t have a constitutional right. He didn’t go as far as some people would’ve expected,” Bursch said.

As for appealing to Democrats, Bursch and Sedler agreed that there’s not much Kavanaugh can say or do that would make him appeal to the left side of the aisle.

“I think it’s purely a political thing that Democrats are taking issue with this to appeal to their base, just as the Republicans are,” Sedler said.

“I think the Democrats have already decided that any nominee Trump named that they were going to oppose across the board,” Bursch added. “I don’t think there’s anything Judge Kavanaugh can say to any of about 95 percent of the Democratic caucus to get them to vote in favor of him.”

After meeting with senators, Kavanaugh will face Senate Judiciary Committee hearings as part of his confirmation process. A floor vote to confirm Kavanaugh could take place later this summer to ensure that he would be sitting for the start of the court’s next term in early October.


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