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Was Selecting A Supreme Court Judge Always So Divisive?

Sen. Bernie Sanders, I-Vt., speaks with protesters in front of the Supreme Court in Washington, Monday, July 9, 2018, after President Donald Trump announced Judge Brett Kavanaugh as his Supreme Court nominee.
Sen. Bernie Sanders, I-Vt., speaks with protesters in front of the Supreme Court in Washington, Monday, July 9, 2018, after President Donald Trump announced Judge Brett Kavanaugh as his Supreme Court nominee.

Following the death of Ruth Bader Ginsburg - and with little more than a month to go before a presidential election - President Trump has said he will announce his third appointee to the U.S. Supreme Court later this week. Democrats, Republicans, and most of America, have a lot to say about this. 

A little over an hour after news of Ginsburg's death broke, Senate Majority Leader Mitch McConnell said the Senate would move forward with a vote on Trump's replacement. This, despite the Kentucky Republican having blocked a 2016 hearing for former President Barack Obama's then-pick, Merrick Garland, arguing that given it was an election year, "the American people should have a say in the court's direction." 

This back-and-forth is all about political power, NPR's Domenico Montanaro writes, and it's not the first time a Supreme Court nominee - who is supposed to be independent of politics - has gotten so, well, political. In 2018, following Trump's selection of now Supreme Court Judge Brett Kavanaugh, WVXU spoke with University of Dayton law professor Thaddeus Hoffmeister about this shift. 

"Solid choice." "As right-wing as they come." "Clearly qualified." "Serious concerns."

Those are the words Brad Wenstrup (R-OH), Aftab Pureval (D-Hamilton County), Rob Portman (R-OH) and Sherrod Brown (D-OH), respectively, used to describe their reaction to President Donald Trump’s choice of Brett Kavanaugh to replace Supreme Court Justice Anthony Kennedy, who is retiring later this month. So depending on what side of the aisle you fall on, you're either ecstatic or terrified.

But it wasn't always that way.

Instead, it's only been a trend of the last 30 years or so where "justices don't really cross over anymore," says Thaddeus Hoffmeister, a law professor with the University of Dayton. These days, Hoffmeister says, justices who are appointed by a specific president generally follow that president's ideology.

"I'm not sure why that is now," he adds. "Some of it can be laid to blame that you don't have to put forward consensus candidates anymore. That was one of the benefits of the filibuster—it forced you to put someone who really needed a super-majority approval. Well, you don't need that anymore. You can put anybody you want as long as you control the Senate and the executive branch."

Which President Donald Trump and Republicans most certainly do. Democrats' chances of blocking a vote now are slim, though that could change come November, following midterm elections.

Either way, "there's going to be a shift in the court and that's going to trickle down to all the lower courts because there's going to be a trend to go toward a more conservative view about how you interpret the Constitution and apply it to Americans," Hoffmeister says.

If appointed, Kavanaugh's conservative leanings will most certainly affect the kinds of cases brought before the court. "You're going to see people challenge the way the immigration policy is being enforced; I think you'll see challenges to how transgender service members are being treated," Hoffmeister says. "I don't know if the Supreme Court is going to pick up a gerrymandering case, but I could see them picking up affirmative action."

A Kavanaugh appointment could also embolden states to change or modify laws on abortion, he adds. "In many ways, I see them trying to be more restrictive, and then someone is going to challenge that and then it’s going to go up (to the Supreme Court)."

Still, justices aren't just proxies of the president who appointed them—they are their own people, with their own minds. Consider how when Republican Dwight Eisenhower picked Earl Warren to be Chief Justice in 1953, Warren later led the Court in a series of more liberal decisions, like desegregating schools and outlawing school prayer. Justice Harry Blackmun, appointed by Richard Nixon, authored the Court's decision on Roe v. Wade. Even Kennedy, when appointed by Ronald Reagan in 1988, was thought to be a straight-line conservative, but he leaves the court as its known swing-voter.

This story first appeared on July 11, 2018. 

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