President Trump announced his second appointment to the Supreme Court of the United States on Monday evening. The announcement came on the 150th anniversary of the 14th Amendment, which granted citizenship to all "persons born or naturalized in the United States" following the end of slavery in America.
Trump has chosen Brett Kavanaugh to succeed Justice Anthony Kennedy, who announced in June that he would be stepping down from the bench on July 31 of this year.
— NBC News (@NBCNews) July 10, 2018
Kavanaugh, 53, is a judge of the United States Court of Appeals for the District of Columbia Circuit. As Reason previously reported, spectators look to Kavanaugh's 2011 dissent in Seven-Sky v. Holder to gauge what kind of justice he will be.
The case considered the constitutionality of the Patient Protection and Affordable Care Act, otherwise known as Obamacare. Though the case was ultimately decided in favor of the healthcare bill, Kavanaugh's dissent argued that a federal court should not have heard the case in the first place:
In Kavanaugh's view, the D.C. Circuit should have been guided by the Anti-Injunction Act, an 1867 law that says, "no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court." In other words, a tax cannot be challenged until it has been assessed and paid. And in Kavanaugh's view, Obamacare's individual mandate deserved to be counted as a tax, even though the law's authors called it a "penalty." "The Anti- Injunction Act precludes us from deciding this case at this time," he wrote.
Kavanaugh's opinions on gun rights, searches and seizures, and Citizens United v. Federal Election Commission have also provided some insight into what decisions will come out of the future court.
As Reason also reported, politics also come into play heavily for Kavanaugh as Senate Majority Leader Mitch McConnell believed that Kavanaugh's "extensive paper trail could slow down the process and enable Senate Democrats to prevent confirmation prior to the start of the next Supreme Court term in October." McConnell informed that White House that confirming Kavanaugh would be more difficult than confirming other Trump finalists like Judges Raymond Kethledge or Thomas Hardiman.
It was said that out of the names on Trump's short-list, he was most favorable toward Raymond Kethledge, 51, of the United States Court of Appeals for the Sixth Circuit. In contrast, Trump was least favorable toward Amy Coney Barrett, 46, of the United States Court of Appeals for the Seventh Circuit. In fact, Bloomberg reports that her interview with Trump was shorter than everyone else's, lasting about 30 minutes.
Kavanaugh will replace a justice who was, as Reason's Damon Root observed, a "moderate conservative with liberal tendencies." Appointed to the Supreme Court in 1987 by President Ronald Reagan, Kennedy's tie-breaking vote solidified his legacy in influencing highly contested legal issues. Kennedy's vote played a significant role in deciding cases that are seen cornerstones to American gay rights and abortion laws. Root writes:
Over the years, Kennedy has been denounced by every major faction in American politics. In conservative circles, for example, he has been keelhauled as a reckless judicial activist who "invented" a right to gay marriage. Liberals, meanwhile, have burned him in effigy as the unwitting mouthpiece for corporate oligarchs thanks to his majority opinion in the Citizens United case. And among libertarians, Kennedy has been damned as the fair-weather federalist who torpedoed the rights of local medical marijuana users in favor of a federal drug control scheme. Libertarians will also point out that Kennedy joined the majority opinion that unleashed the forces of eminent domain abuse in Kelo v. City of New London (2005).