Ultimately, the stakes of this nomination go well beyond 2018. This Supreme Court appointment could shape the federal judiciary for a generation. If Kavanaugh is confirmed, he will likely serve as a staunch conservative, originalist voice on the Court for decades to come, establishing a renewed conservative majority that could fundamentally reshape a range of legal areas, especially when it comes to hotly contested social issues like abortion and LGBT rights.
Kavanaugh has served on the D.C. Circuit Court of Appeals for more than a decade, and during that time, he has weighed in on a number of consequential cases. Last fall, he dissented from a ruling that allowed an undocumented teen to seek an abortion, saying that the majority had “badly erred.” Several years ago, he dissented in another case involving Priests for Life, one of the groups that challenged the birth-control mandate in the Affordable Care Act on religious grounds. As Edith Roberts writes over at SCOTUSblog, the legal website, his biggest impact has perhaps been in checking administrative power, especially at the Environmental Protection Agency.
In some ways, Kavanaugh would be continuing Kennedy’s legacy on the Court. He clerked for the justice in the early 1990s, and Kennedy swore Kavanaugh in to his post on the D.C. Circuit in 2006. He’s got a long resume in Republican politics: He worked with the attorney Kenneth Starr on the investigation into the death of Vince Foster, an aide to President Bill Clinton, and on the Starr Report, which laid out the case for Clinton’s impeachment. He is both a George W. Bush appointee and a family friend: His wife, Ashley, was the former president’s personal secretary for years.
Like Neil Gorsuch, Trump’s last pick for the Supreme Court, Kavanaugh is in his early 50s, meaning he would likely have a long tenure on the Court. And that is exactly what worries liberal activists.
Almost as soon as Kennedy announced his retirement, political groups turned the fight over his replacement into a fight over abortion. Although Kennedy was not yet on the Court in 1973 when Roe v. Wade established women’s right to an abortion, the justice famously provided the crucial fifth vote in the 1992 case Planned Parenthood v. Casey, which reaffirmed the legal framework laid out in Roe. Throughout his tenure, Kennedy largely continued to support fundamental abortion rights—within limits, which made him unpopular among both pro-choice and pro-life activists.
Since the beginning of his campaign, Trump has been promising to use judicial appointments to overturn Roe, which would theoretically send the question of abortion access back to state legislatures. During a 2016 Fox News interview, the president said Roe would be overturned “automatically” if he’s able to appoint two or three new justices, “because I am putting pro-life justices on the Court.” He recently told Fox News’s Maria Bartiromo that “Roe v. Wade is probably the one that people are talking about in terms of having an effect.”