Supreme Showdown

Expect to see plenty of fireworks this month in Washington. No, not at some patriotic celebration, but during Senate confirmation hearings for Brett Kavanaugh, President Trump’s nominee to the Supreme Court.

Supreme Court nominations are always big news, but Americans are paying more attention to this one than they have to any other in decades. That’s because the vacancy was created by retiring Justice Anthony Kennedy, who has for years been the Court’s swing vote between its conservative and liberal wings.

Most Democrats strongly oppose Kavanaugh, while most Republicans strongly support him. That means things could get ugly. Here’s what you need to know to follow the debate.

Expect to see plenty of fireworks this month in Washington. No, not at some patriotic celebration, but during Senate confirmation hearings for Brett Kavanaugh, President Trump’s nominee to the Supreme Court.

Supreme Court nominations are always big news. But Americans are paying more attention to this one than they have to any other in decades. That’s because the vacancy was created by retiring Justice Anthony Kennedy. For years, he’s been the Court’s swing vote between its conservative and liberal wings.

Most Democrats strongly oppose Kavanaugh, while most Republicans strongly support him. That means things could get ugly. Here’s what you need to know to follow the debate.

In short, because it can have such a lasting impact. A president serves a maximum of eight years—if he or she wins re-election. But the Supreme Court’s nine justices serve for life or until they choose to retire. That means they continue to shape American society—by deciding whether or not the nation’s laws are permitted under the Constitution—long after the presidents who appointed them have left office.

“The Supreme Court does have a really strong impact on the daily lives of all of us,” says Sarah Binder, a Supreme Court expert at George Washington University. “Everything from whether the police can search your cellphone during a traffic stop, to which presidential candidate actually won the election, and everything in between can be decided by the Court.”

In short, because it can have such a lasting impact. A president serves a maximum of eight years—if he or she wins re-election. But the Supreme Court’s nine justices serve for life or until they choose to retire. It’s their job to decide whether or not the nation’s laws are permitted under the Constitution. That means they continue to shape American society long after the presidents who appointed them have left office.

“The Supreme Court does have a really strong impact on the daily lives of all of us,” says Sarah Binder, a Supreme Court expert at George Washington University. “Everything from whether the police can search your cellphone during a traffic stop, to which presidential candidate actually won the election, and everything in between can be decided by the Court.”

When a justice dies or resigns, the Constitution gives the president the authority to nominate a replacement. It’s the job of the Senate to investigate the candidate’s qualifications and then vote to confirm or reject the nominee.

First the Senate Judiciary Committee will hold hearings in which Kavanaugh, a 53-year-old federal judge, will answer senators’ questions. The committee will then vote on whether to send his nomination to the full Senate for a vote.

A simple majority among the 100 senators is all that’s needed to confirm a nominee. Republicans hold 51 seats, so under current rules they could confirm Kavanaugh without any Democratic votes. (Democrats hold 47 seats, and two independents caucus with them.)

For many years, 60 yes votes were required for confirmation. In 2017, however, Senate Republicans changed the voting rules to facilitate the confirmation of Neil Gorsuch, President Trump’s first Supreme Court nominee.

When a justice dies or resigns, the Constitution gives the president the authority to nominate a replacement.

It’s the job of the Senate to investigate the candidate’s qualifications. The Senate also votes to confirm or reject the nominee. 

First the Senate Judiciary Committee will hold hearings. During these sessions, Kavanaugh, a 53-year-old federal judge, will answer senators’ questions. The committee will then vote on whether to send his nomination to the full Senate for a vote.

A simple majority among the 100 senators is all that’s needed to confirm a nominee. Republicans hold 51 seats. That means they could confirm Kavanaugh without any Democratic votes under current rules. (Democrats hold 47 seats, and two independents caucus with them.)

For many years, 60 yes votes were required for confirmation. In 2017, Senate Republicans changed the voting rules. They made the change to facilitate the confirmation of Neil Gorsuch, President Trump’s first Supreme Court nominee.

It has a lot to do with who’s being replaced. Justice Kennedy was long considered the swing vote on a Court split between four liberals and four conservatives. Experts expect that Kavanaugh would vote consistently with the conservatives—potentially shifting the Court’s direction for decades to come.  

“Because you’re replacing the center, the whole Court will shift,” says Lee Epstein, a law professor at Washington University in St. Louis.  

Another reason to expect drama is the lingering anger among Democrats over the fate of Merrick Garland, who was nominated in 2016 by President Obama to fill the vacancy created by the death of Justice Antonin Scalia. The Republican-led Senate refused to consider his nomination in an election year. After Trump took office, that seat was filled by Justice Gorsuch.

All that adds up to a likely battle this time around.

“This is one of the most important appointments to the Court in modern history,” says Geoffrey Stone, a law professor at the University of Chicago.

It has a lot to do with who’s being replaced. Justice Kennedy was long considered the swing vote on a Court split between four liberals and four conservatives. Experts expect that Kavanaugh would vote consistently with the conservatives. That could shift the Court’s direction for decades to come.  

“Because you’re replacing the center, the whole Court will shift,” says Lee Epstein, a law professor at Washington University in St. Louis.  

Another reason to expect drama is the lingering anger among Democrats over Merrick Garland’s fate. In 2016, President Obama nominated Garland to fill the vacancy created by the death of Justice Antonin Scalia. The Republican-led Senate refused to consider his nomination in an election year. After Trump took office, that seat was filled by Justice Gorsuch.

All that adds up to a likely battle this time around.

“This is one of the most important appointments to the Court in modern history,” says Geoffrey Stone, a law professor at the University of Chicago.

No. In fact, for most of our history, the confirmation of Supreme Court nominees usually wasn’t controversial. In 1993, Ruth Bader Ginsburg—now considered one of the most liberal justices—was easily confirmed, 96 to 3. And in 1986, Scalia, one of the most conservative recent justices, was confirmed 98 to 0.

But as our political system—and the country as a whole—have become more polarized, the confirmation process has gotten a lot more contentious.

No. In fact, for most of our history, the confirmation of Supreme Court nominees usually wasn’t controversial. In 1993, Ruth Bader Ginsburg—now considered one of the most liberal justices—was easily confirmed, 96 to 3. And in 1986, Scalia, one of the most conservative recent justices, was confirmed 98 to 0.

But our political system and the country as a whole have become more polarized. That’s caused the confirmation process to become a lot more contentious.

In the coming years, the Court will likely issue rulings related to the rights of immigrants, a woman’s right to get an abortion, digital privacy, and other hot-button issues.

If Kavanaugh joins the bench, most experts predict the four liberal justices will more often be on the losing end on many of these issues. But there’s always the possibility that we’ll be surprised.

“The Court will have a conservative bent for the next few years,” writes Harvard law professor Jack Goldsmith. “Beyond that, it is too early to tell.”

In the coming years, the Court will likely issue rulings on hot-button matters. That includes the rights of immigrants, a woman’s right to get an abortion, and digital privacy.

If Kavanaugh joins the bench, most experts predict the four liberal justices will more often be on the losing end on many of these issues. But there’s always the possibility that we’ll be surprised.

“The Court will have a conservative bent for the next few years,” writes Harvard law professor Jack Goldsmith. “Beyond that, it is too early to tell.”