U.S. Supreme Court

America’s founding fathers didn’t want a dominating federal government. So they split its powers among Congress, the president and the courts. The top judicial body, the Supreme Court, is made up of justices nominated by the president and confirmed by the Senate. If the justices then meet the Constitution’s sole requirement for the job — “good Behaviour” in the original text — they remain on the court until voluntary retirement or death. The system was designed to keep these judges free from election pressures. Nevertheless, the court’s decisions on issues including race relations and presidential reach have become more polarized in recent years and just half of Americans approve of the way its handling its job. The newest vacancy on the court will again highlight the divide.

On July 9, President Donald Trump announced that he was nominating Judge Brett Kavanaugh of the U.S. Court of Appeals for the District of Columbia Circuit to replace Supreme Court Justice Anthony Kennedy, who retires at the end of July. Kavanaugh’s nomination provides a second opportunity for Trump to fulfill his campaign promise to nominate conservative justices similar to Justice Antonin Scalia, who died in February 2016. Trump’s first nominee, Neil Gorsuch, was confirmed by the U.S. Senate and sworn in as a justice in April 2017. Justices chosen by Republican presidents have controlled the nine-member court since 1969, leading to 5-4 decisions that extended an individual’s right to own guns, lifted restrictions on corporate campaign spending and rejected mandatory union fees. Scalia’s death had left an even split between Republican and Democratic appointees on the court. President Barack Obama, a Democrat in his last year as president, would have had a chance to reverse the court’s ideological slant. But after he nominated Merrick Garland, chief judge of the federal appeals court in Washington, to fill the seat, Republican senators refused to hold confirmation hearings. Their strategy was rewarded when Trump was elected. Senate Democrats who were still furious over the blockade of Garland tried to block a vote to approve Gorsuch, a champion of religious liberty from the 10th U.S. Circuit Court of Appeals in Denver. Senate rules had called for a supermajority of 60 votes to cut off a debate and allow a Supreme Court nominee vote. At the time, Republicans held just 52 of the 100 Senate seats; the first vote to end the Gorsuch debate fell short at 55-45. So Senate Majority Leader Mitch McConnell invoked the “nuclear option” and called for a simple majority vote to change these rules on filibusters, which passed, allowing Gorsuch to be confirmed. And a simple majority is all that will be required to confirm Kavanaugh.