New York congressional representatives respond to Supreme Court nomination along party lines

Watertown Daily Times (NY)

July 11--The reaction to President Donald J. Trump's nomination of Judge Brett M. Kavanaugh Monday as the next associate justice of the United States Supreme Court has been split along party lines.

In Northern New York, U.S. Rep. Elise M. Stefanik, R-Willsboro, has voiced her support for Mr. Kavanaugh while New York Sens. Charles E. Schumer and Kirsten E. Gillibrand, both Democrats, have come out strongly opposed -- a division that may itself signal a change to the Supreme Court.

"All the conservatives have been appointed by Republican presidents and all the liberals have been appointed by Democratic presidents," said Keith J. Bybee, vice dean of the Syracuse University College of Law. "It will be interesting to see if the public perception of the court changes."

Historically, Mr. Bybee said, political and judicial conservatism meant different things -- one was a theory of what laws to create, the other was how laws should be interpreted. Democrats sometimes appointed conservative justices, and Republicans sometimes appointed liberal justices.

But now, Mr. Bybee said, judicial and political ideologies seem to be more interwoven.

"We live in a deeply partisan era," he said. "There is no reason the court will be an exception."

If confirmed by the Senate, Mr. Kavanaugh will replace retiring Justice Anthony Kennedy, a conservative justice in most areas who voted with liberal justices in some key cases, supporting gay marriage, upholding abortion rights and some affirmative action policies.

"He's no Kennedy," Mr. Bybee said of Mr. Kavanaugh. "To the extent Kavanaugh disagrees with Kennedy ... you'll see the court change."

Ms. Stefanik voiced her support for Mr. Kavanaugh based on his legal credentials, although as a member of the House of Representatives, she will not vote on his confirmation.

"Judge Kavanaugh has dedicated his life to public service and is an excellent choice who will uphold the U.S. Constitution," Ms. Stefanik wrote in a statement emailed to the Times. "Judge Kavanaugh has over a decade's experience on the U.S. Court of Appeals, clerked for Justice Kennedy and graduated from Yale. I look forward to hearing more about his opinions and background as he moves through the U.S. Senate confirmation process over the coming weeks."

Despite his experience and relative moderation compared to the current conservative justices -- historically some of the most conservative Supreme Court justices ever, according to Mr. Bybee -- Mr. Kavanaugh's nomination has sparked strong opposition from Senate Democrats.

"If he is confirmed, he would tip the court even more against labor rights, women's rights and civil rights," said Sen. Gillibrand during a phone news conference Tuesday.

Sen. Schumer, who serves as Senate minority leader, hit on similar themes during an address from the Senate floor Tuesday.

"In selecting Judge Kavanaugh, President Trump did exactly what he said he would do on the campaign trail -- someone who would overturn women's reproductive rights and strike down health care protections for millions of Americans, including those with pre-existing conditions," Mr. Schumer said. "He's a deeply, deeply conservative justice, way out of the mainstream."

The future of Roe v. Wade, and abortion rights more broadly, is the major question, given Justice Kennedy's role as a swing vote upholding the ruling. President Trump said opposing the ruling would be a requirement to be on his shortlist of 25 potential Supreme Court nominees, from which Mr. Kavanaugh was selected.

"If anyone believes that Judge Kavanaugh or anyone else on the list would uphold Roe v. Wade, I have a bridge to sell you," Mr. Schumer said.

Mr. Bybee said the future of Roe v. Wade was less clear than that, although the end result may be the same.

"I don't know if anybody knows outright if Roe will be overturned," Mr. Bybee said. "You can change the protection of a right without overturning the right."

In this, and in many other areas, there is no question Mr. Kavanaugh will bring a conservative judicial ideology.

"It will be an issue of what kind of conservative he turns out to be," Mr. Bybee said.

Mr. Bybee thinks that Mr. Kavanugh, if approved, will be to the right of Chief Justice John Roberts but not as hardline as Justice Clarence Thomas -- closer to Justice Samuel A. Alito.

Without being able to see him in action, however, and in light of President Trump's statement and Mr. Kavanaugh's own historical association with Republican politics, Democrats are expecting the worst.

"I strongly oppose this nomination, and I urge all New Yorkers to join me," Sen. Gillibrand said. "I'm going to do absolutely everything I can to speak out against this nominee."

Without a majority in the Senate, there is little hope that Democrats will be able to block Mr. Kavanaugh. Sen. Gillibrand said if there is enough public outcry, some Republican senators may flip and oppose him.

"It really depends on the American people," Sen. Gillibrand said. "I think anything is possible."

For Mr. Bybee, however hard fought the nomination process will be, the result is not in doubt.

"It seems highly unlikely he'll be rejected by the Senate," he said. "(But) it will be hard fought."

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