President Donald Trump has nominated Brett Kavanaugh to fill the spot of retiring Supreme Court Justice Anthony Kennedy. Some saw Kennedy as a swing vote on the bench, but experts say it’s unlikely that Kavanaugh will take on that role.
Instead, Paul Brace, the chair of legal studies in the political science department at Rice University, says Kavanaugh would almost certainly be a more conservative justice than Chief Justice John Roberts, making Roberts the new ideological center of the court.
“Roberts has been trending slightly more liberally on his time on the bench,” Brace says, “and I think he will definitely be the median justice going forward.”
Brace says Kavanaugh has a reputation as an incrementalist, and there are other signs that can help predict how he might reach decisions on the Supreme Court.
“A theme that’s woven through his jurisprudence is he’s opposed to the administrative state. He’s opposed to regulatory overreach. And he tends to support religious freedoms, which would restrict state encroachments on religion,” Brace says.
When Kavanaugh recently weighed in on an abortion case, he declined to make a global pronouncement on abortion rights.
“It involved an undocumented teenager, I believe, who needed an abortion, and he dissented from an opinion that supported providing that abortion, arguing that ‘abortion on demand’ for undocumented immigrants is not a right. And so he didn’t say abortion is categorically not constitutionally permissible, but in this particular case he said there’s no opportunity for an abortion here. Now, he was overruled in that case. But there were other opinions, I believe in that particular case, of other jurists who were more willing to take a more global approach against abortion. He didn’t do that. So again, he’s an incrementalist.”
Kavanaugh’s confirmation process could be difficult, but ultimately it will come down to just a handful of votes one way or another.
Todd Gillman, the Washington bureau chief for the Dallas Morning News, has been following reactions from Washington lawmakers who will play a key role in whether or not Kavanaugh will be confirmed. Both Texas senators, Ted Cruz and John Cornyn, are members of the Senate Judiciary committee, which will hold the confirmation hearings.
“Both already very quickly expressed their support,” Gillman says. “Cornyn’s support was pretty much a given and he had signaled before Trump even announced who his nominee was going to be that whoever it was, was going to be fine with him. Everybody knew that it was going to be one of 25 pre-screened conservatives.”
However, Gillman says, Cruz had privately argued against Kavanaugh.
“He had a preference for fellow Senator Mike Lee, who he had argued was a much more reliable conservative,” Gillman says.
With a Republican majority in the Senate, Kavanaugh could be on the bench as early as October.
Written by Jen Rice.