If Not Kavanaugh, Who?
The confirmation of Brett Kavanaugh to the United States Supreme Court seemed like a given.
Until it didn’t.
First came Christine Blasey Ford. Then, a week later, Deborah Ramirez. Both claimed that they were sexually assaulted by Kavanaugh-Ford while she was in high school, Ramirez while in college. Today after several days of teasing that he was representing a woman who was both a witness and a victim to alleged misconduct by Kavanaugh, Michael Avenatti, the attorney for Stormy Daniels, posted a sworn statement online from Julie Swetnick who claims to have "witnessed efforts by...Brett Kavanaugh and others to cause girls to become inebriated and disoriented so they could then be ‘gang raped’ in a side room or bedroom by a ‘train’ of numerous boys.” She also claims that around 1982 she “became the victim of one of these ‘gang’ or ‘train’ rapes.”
Kavanaugh called the latest allegations "ridiculous and like something from the Twilight Zone."
This isn’t the “paper trail” that Senate Majority Leader Mitch McConnell was worried about if Trump picked Kavanaugh-it’s worse. Yet Republicans continue to stand behind their man, pushing to hold a vote on his nomination as soon as possible and raising questions about the legitimacy of Kavanaugh's accusers' claims.
On Monday, President Trump tweeted: “The Democrats are working hard to destroy a wonderful man.” This followed his tweet from a few days earlier, in which he expressed skepticism about Ford’s account: “I have no doubt that, if the attack on Dr. Ford was as bad as she says, charges would have been immediately filed with Local Law Enforcement Authorities by either her or her loving parents.” Trump has been dismissive of Ramirez, too. He told reporters at the United Nations General Assembly that she “was drunk” and “has nothing.”
Kavanaugh himself has no plans to withdraw his nomination. In a letter addressed to the Senate Judiciary Committee Monday, Kavanaugh called the allegations “smears, pure and simple.” Meanwhile, in an interview with Fox News, he said, “I’m not going to let false accusations drive me out of this process.”
YOUR CHEAT SHEET TO THE POSSIBLE SUPREME COURT CONTENDERS:
On Thursday, a hearing will take place in front of the Senate Judiciary Committee, with both Ford and Kavanaugh testifying, and a committee vote is currently scheduled for Friday. In a prepared written testimony released today, Kavanaugh said: "The truth is that I have never sexually assaulted anyone-not in high school, not in college, not ever."
But if Ford’s testimony, as well as allegations from other women, convinces enough senators to question if Kavanaugh is unfit to serve on the Supreme Court, the White House will have to tap someone else for that position.
“Should Judge Kavanaugh withdraw or be defeated, there are still concerns,” says Rachel Easter, counsel at the National Women’s Law Center. “I am hard-pressed to imagine a nominee who is not tainted by the president. No matter who he picks, we’re very concerned about what it would mean for many of our most critical institutional rights and legal protections.”
So who is waiting in the wings? Before Kavanaugh was nominated, there were other projected front-runners. So let’s review.
AMY CONEY BARRETT
Currently a judge on the 7th U.S. Circuit Court of Appeals based in Chicago, Coney Barrett is considered by many to be the top contender should Kavanaugh not make the cut. She was appointed by Trump to her current seat on the federal bench, and if nominated for the Supreme Court, she would go through a confirmation process with much of the same Senate that confirmed her nomination to the 7th Circuit. Plus, she’s a woman, which might be helpful for getting her through after the accusations of misogyny Republicans have faced during the Kavanaugh fight.
But some groups have expressed concern about how her rulings would affect women’s rights in this country. “Barrett’s confirmation proves that the anti-choice GOP is more concerned with advancing its out-of-touch agenda than upholding our basic human rights,” NARAL Pro-Choice America president Ilyse Hogue said in a statement after her confirmation to the appeals court.
One of the biggest fears of women’s rights advocates when it comes to Coney Barrett (and really, anyone Trump would nominate, considering he promised to put pro-life judges on the Court during his campaign) is that she might vote to overturn Roe v. Wade. In a 2013 article in the Texas Law Review, Coney Barrett wrote in support of the Supreme Court’s willingness to revisit its precedents in constitutional cases, arguing it “helps the Court navigate controversial areas by leaving space for reargument.”
Although she cited several cases in that article as “superprecedents”-which she’s described as “cases that no justice would overrule, even if she disagrees with the interpretive premises from which the precedent proceeds”-she did not put Roe on that list, raising questions about how secure it would be with her on the court. Asked about this article at her confirmation hearing, she said she the list of "superprecedents" was compiled by others, and declined to comment on any particular case.
While teaching at Notre Dame, Coney Barrett was a member of the university’s "Faculty of Life" group, which advocates for the legal recognition of human life starting at conception. In 2015, she signed a letter affirming the importance of the Catholic Church’s teaching “on the dignity of the human person and the value of human life from conception to natural death; on the meaning of human sexuality, the significance of sexual difference and the complementarity of men and women; on openness to life and the gift of motherhood; and on marriage and family founded on the indissoluble commitment of a man and a woman.”
She gave a speech to a program sponsored by the Alliance Defending Freedom, an organization that the Southern Poverty Law Center has identified as a hate group given its extreme anti-LGBTQ positions, including re-criminalizing of homosexuality, linking homosexuality to pedophilia, and claiming homosexuals will destroy society. (Coney Barrett says when she gave the speech she only understood the Alliance Defending Freedom as supporting "a traditional view of marriage," and she does not know if the Southern Poverty Law Center's characterizations of the ADF's views are accurate.)
However, when she was nominated for the appeals court, 27 LGBTQ advocacy groups sent a letter to Senate Judiciary Committee chairman Chuck Grassley and ranking member Dianne Feinstein opposing her confirmation and calling her "a grave threat to the communities that our organizations serve." (In the same letter, they expressed their opposition to Joan Larsen, who is also on this list.)
Coney Barrett has been critical of Chief Justice John Roberts’s decision to uphold parts of the Affordable Care Act, and in 2012, she signed a statement blasting the Obama administration’s accommodation for religiously affiliated organizations who objected to the ACA’s birth control mandate, calling it a “grave infringement on religious liberty.” The letter also falsely characterized some forms of contraception as “abortion-inducing drugs.”
RAYMOND KETHLEDGE
When Kethledge, who’s been on the 6th U.S. Circuit Court of Appeals based in Cincinnati since 2008, made Trump’s shortlist of potential Supreme Court nominees, Politico described him as “a down-to-earth Michigander who checks all the boxes for conservatives.”
In 2014, he wrote the opinion of a three-judge panel rejecting an employee’s claim for certain short-term disability benefits under state law, finding the law was preempted by federal law which did not provide for such benefits. The next year, joined a decision that ruled against a woman who claimed her employer violated the Family Medical Leave Act and engaged in pregnancy discrimination when it fired her for refusing to go on unpaid leave through FMLA instead of allowing her to perform restricted duties identified by her doctor.
In 2012, in the case of Gagne v Booker, he wrote a strongly worded dissent, arguing that a rape survivor’s prior sexual history should be admitted as evidence in a criminal trial against her accused rapist. “The sexual conduct at issue here-rough, three-way sex involving the complainant, the defendant, and another man-would appear ‘facially coercive’ to a jury,” he wrote. “The charged conduct would appear that way, that is, unless the jury was told that the complainant had consented to virtually identical conduct with Gagne and another man just four weeks earlier, and had proposed the same thing to Gagne and another man on a third occasion...That is a critical difference in a rape trial in which the only issue was consent and the stakes ran as high as 45 years in prison.”
Other cases that are sure to draw attention: He ruled in United States v. Carpenter that cell phone users don’t have a reasonable expectation of privacy when it comes to their GPS data (a decision reversed by the Supreme Court), in United States v. Gabrion that the fact that the state where a crime is committed doesn’t have the death penalty shouldn’t be a mitigating factor in a federal death penalty case, and in United States v. NorCal Tea Party Patriots that the IRS couldn’t withhold documents related to Tea Party-affiliated groups’ claim that they were being discriminated against when they applied for tax-exempt status.
THOMAS HARDIMAN
Currently serving on the 3rd U.S. Circuit Court of Appeals based in Philadelphia, the same circuit for which Trump’s sister Maryanne Trump Barry is a judge, Hardiman was reportedly the runner-up to replace the late Antonin Scalia. SCOTUSBlog describes him as a “solid, although hardly knee-jerk, conservative.”
Before his appointment as a judge, Hardiman worked as a private attorney who argued that a Ten Commandment plaque located on the side of a Pennsylvania courthouse should not be removed, a case that earned him praise from the conservative Heritage Foundation.
According to the Washington Post, experts say Hardiman “holds a more expansive view of the Second Amendment than the Supreme Court has articulated to date.” Notably, in a dissent in Drake v. Filko, Hardiman argued that people should not be required to show “justifiable need” to carry a gun in public.
In Easton Area School District v. B.H., the 3rd Circuit ruled that middle schoolers should be able to wear bracelets that said “I ? boobies” to raise awareness about breast cancer. Hardiman disagreed, writing in dissent that the school should be able to restrict such speech because it is “objectively reasonable to interpret the bracelets, in the middle school context, as inappropriate sexual innuendo and double entendre.” And though he has not ruled on a case related to Roe v. Wade, he did rule in favor of an anti-abortion protester who had refused to move away from sidewalk in front of the Liberty Bell Center in Philadelphia, saying the protestor's rights had been violated.
Earlier this year, Hardiman wrote the opinion in the case of Little Sisters of the Poor Home for the Aged v Burwell that allowed a Catholic order of nuns to intervene in litigation over the Trump administration’s plan to expand exemptions to the Affordable Care Act’s birth control mandate.
OTHER POTENTIAL PICKS:
They haven’t gotten as much buzz but have still been floated as potential shortlist choices.
Britt Grant: In July, Britt Grant, another Trump nominee, was confirmed as a justice on the 11th U.S. Circuit Court in Atlanta. When she was solicitor general of Georgia, she argued in support of a Georgia law that banned abortion after 20 weeks. rejected a challenge to a Georgia law that bans abortion after 20 weeks. Grant was also part of a group that worked on an amicus brief in support of Indiana’s efforts to defund Planned Parenthood and other abortion providers by excluding them from receiving federal Medicaid funds. She also worked on a brief in the landmark marriage-equality case Obergefell v. Hodges, arguing there is no constitutional right to same sex marriage.
Mike Lee: A member of the Senate Judiciary Committee, the Utah senator is a former law clerk of Supreme Court Justice Samuel Alito. Lee has made clear his opposition to Roe, calling it “the 1973 Supreme Court case that invented a so-called 'right' to abortion in the Constitution, and in so doing stripped the unborn of their right to life” and saying “the principal effect of Roe on our culture has been to cheapen the value of humanity itself.” In March, he introduced a “religious freedom” bill that critics argued could mark it easier to discriminate against LGBTQ people.
Joan Larsen: A former clerk to the late Justice Antonin Scalia during her tenure on the Supreme Court and an appointee by Trump to the 6th U.S. Circuit Court of Appeals, she criticized the Obama administration for refusing to defend the constitutionally of the Defense of Marriage Act (DOMA), which defined marriage as the union between a man and a woman, and has been critical of the Supreme Court's reasoning in Lawrence v. Texas, the 2003 Supreme Court case that struck down state laws banning sodomy.
('You Might Also Like',)