Between 5 and 7 September 2018, the Senate Judiciary Committee held confirmation hearings for the Supreme Court nominee Judge Kavanaugh. The Committee composed of 21 members (10 Democrats and 11 Republicans) questioned Judge Kavanaugh on his judicial record and philosophy. As expected, it was a hugely contentious hearing with constant shouts from the audience leading to multiple arrests and Democratic Senators attacking the nominee’s credibility and independence. However, after 3 long days, Judge Kavanaugh came out of the hearings without any significant blunder. Most of the time he followed the so called Ginsburg Rule declining to answer any question concerning any legal issue which could possibly come before the Court. Perhaps most crucially, Judge Kavanaugh also described Roe v Wade as an ‘important precedent’ therefore making it possible for the 2 pro-choice Republican Senators Lisa Murkowsky of Alaska and Susan Collins of Maine to support his nomination. The 2 Senators are considered the swing votes in the upcoming confirmation vote given that the Republicans need all their Senators to vote yes, assuming the vote would go down along the party lines, which is likely. Now that Judge Kavanaugh has not raised any red flags for any Republican Senator, he is likely to be confirmed by the Senate by the end of September so that he can join the Court by 01 October when its term starts.
The confirmation of Judge Kavanaugh to the Supreme Court will indeed be a historical moment. For the first time in almost 80 years the US Supreme Court will have a reliable originalist majority. The last time there was an originalist majority on the Court was prior to the so called ‘switch in time that saved nine’, i.e., before Justice Owen Roberts abandoned the originalist approach in the case of West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937) thereby ending the so called Lochner era in the Court’s jurisprudence. For the next 80 years the Court will almost consistently decide cases coming before it based on the premise that the US Constitution is a living document whose meaning changes over time. Now all this is about to change. This, of course, does not mean that the Court will suddenly start overruling 80 years of precedents. However, given how much is at stake, it is no surprise the liberal forces are very anxious about their legacy.