From on the Brink to Confirmed

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For weeks it appeared that DC Circuit Court Judge and Supreme Court nominee was headed for confirmation. Then in a monuments turn of events, a letter accusing Brett Kavanaugh of sexual assault held by Judiciary Committee Ranking Member Sen. Diane Feinstein (D-CA) was leaked to the press. In the letter, Christine Blasey Ford, a professor at Stanford University, unveiled allegations that Brett Kavanaugh had attempted to rape her in the mid 1980s at a party during high school. Suddenly, Kavanaugh confirmation appeared in doubt and a hearing was set up to hear both the allegations of Dr. Ford and the defense of Judge Brett Kavanaugh.

Shortly after the first accusation, more accusations surfaced from a Yale classmate who said Kavanaugh inappropriately revealed himself in front of her and a client of Michael Avenatti who accused Kavanaugh and his friends of orchestrating gang rapes of multiple women in high school. These accusations focused the media’s attention on Kavanaugh’s drinking habits during high school and college where many remembered him as a heavy drinker.

During the hearing, Republicans hired a female sex prosecutor from Arizona to carry out their questioning and point out the gaps in her story. However, Ford came off as very compelling and credible in the eyes of the large majority of Americans and the media. However, in his portion of the hearing, Brett Kavanaugh came out swinging in his defense of his character and reputation. He displayed emotion both in his anger and in sadness. Republicans also used speeches to push back on the accusations and the Democratic attacks.

On the day of the Judiciary Committee, Sen. Jeff Flake (R-AZ) in a surprised move said that he would only support Kavanaugh out of committee if a 1 week FBI investigation was created to look into the allegations. After the FBI report was released and Senators began to read it, it was clear that the political tide had shifted in Brett Kavanaugh’s favor. Swing votes Sens. Susan Collins (R-ME), Jeff Flake (R-AZ), and Joe Manchin (D-WV) voted in favor of Kavanaugh while Sens. Lisa Murkowski (R-AK) and Heidi Heitkamp (D-ND) voted against his nomination. This vote was the closest Supreme Court vote in the past 100 years and solidified the conservative majority on the Supreme Court for a generation to come.

The Kavanaugh Hearings

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Last week, the Senate Judiciary Committee had the long awaited week-long confirmation hearing of Supreme Court nominee Brett Kavanaugh who currently resides on the US Court of Appeals for the DC circuit. Brett Kavanaugh is nominated to fill the seat of Justice Anthony Kennedy who decided to retire at the beginning of the summer. While Kennedy was viewed as a moderate on the high court, Kavanaugh if confirmed will drastically shift the direction of the Supreme Court to the right.

The confirmation hearing opened with fireworks when Democrats on the committee continually interrupted Judiciary Committee Chairman Sen. Chuck Grassley (R-IA) in his opening remarks in protest of the nomination and what they believe are withheld documents important to the consideration of the nomination. Throughout the hearings, many protesters interrupted periodically before being dragged by Capitol Police out of the committee room.

Sens. and potential 2020 presidential candidates Cory Booker (D-NJ) and Kamala Harris (D-CA) asked difficult questions of Kavanaugh and were lauded by the Democratic base as the best interrogators of the nominee. Democrats tried to highlight key issues like gun policy, abortion, and healthcare that could be affected if Kavanaugh is confirmed to the Supreme Court. In contrast, Republican Senators highlighted Kavanaugh’s credentials and his judicial philosophy of originalism and textualism.

Despite the heavy resistance from the left to Kavanaugh’s nomination, he seems almost certain for confirmation by the Senate. Because of the late Senator McCain’s passing, his replacement Senator Jon Kyl (R-AZ) will be able to vote for Kavanaugh allowing the GOP to lose at least one vote. Moderate Sens. Lisa Murkowski (R-AK) and Susan Collins (R-ME) are viewed by many observers as leaning towards voting yes. Additionally, Democratic Senators up for reelection in red states can face political blowback if they vote against Kavanaugh’s nomination.

Justice Anthony Kennedy Retires

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On the last day of the Supreme Court term, Justice Anthony Kennedy in a surprising announcement wrote a letter to President Trump detailing his intent to retire after 30 years on the court. Over his tenure, Justice Kennedy has played the role of the “swing justice” joining both the conservative and liberal wings of the court for important decisions. He was viewed as a moderately conservative judge who ruled conservatively on business issues, the 1st amendment, and federalism but sided with liberals on social issues like abortion and gay rights. Some of the most impactful decisions of the last decade such as Citizens United which struck down campaign finance laws and Obergefell which legalized same-sex marriage nationwide.

His retirement ignited a heated political battle over the future of the Supreme Court. President Donald Trump has the opportunity to appoint a strict originalist judge to the court and significantly move the court to the right. However, Democrats in the Senate are dedicated to do everything in their power to block his nominee. Senate Minority Leader Chuck Schumer (D-NY) has already stated that the Senate should not consider a nominee until after the midterm elections. Despite their opposition, Democrats have little power to block a confirmation if Republicans stay united because during the confirmation of Justice Neil Gorsuch, Senate Majority Leader Mitch McConnell killed the filibuster on Supreme Court nominees.

The Republicans most vulnerable to defecting are Sen. Susan Collins (R-ME) and Sen. Lisa Murkowski (R-AK). Both are the most moderate in the Senate Republican Caucus and both are pro-choice. Both have signaled that they would like a centrist nominee and a justice that would maintain Roe v. Wade. On the Democratic side, Republicans are targeting Senators like Sen. Joe Manchin (D-WV) and Sen. Heidi Heitkamp (D-ND) who are running for reelection in states that President Trump won by double digits and voted for Justice Gorsuch last year.

In searching for a nominee, President Trump is sticking with the list of 25 potential nominees developed by the Heritage Foundation and the Federalist Society that he touted on the campaign. A shortlist of five candidates has emerged and include Judge Brett Kavanaugh on the DC Circuit, Judge Amy Coney Barrett on the 7th Circuit, Judge Amul Thapar on the 6th Circuit, Judge Thomas Hardiman on the 3rd Circuit, and Judge Raymond Kethledge on 6th Circuit. Many of these candidates were Supreme Court clerks and have a potential to serve on the Supreme Court for decades due to their young age. Any of these candidates have the potential to influence the future of the country for years to come.

Mitch McConnell’s Healthcare Dilemma

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On Thursday, Senate Majority Leader Mitch McConnell (R-KY) and Senate Leadership unveiled their version of an Obamacare repeal and replace called the Better Care Reconciliation Act. Given the wide ideological differences within the Republican Conference, Republican leadership will have a hard time to find the 50 members that they need to pass the bill. The bill eliminates major pieces of Obamacare such as the individual mandate and employer mandate. The bill also changes the subsidy structure, phases out the Medicaid expansion, allows states to use waivers to eliminate Obamacare regulations, creates a fund for market stabilization and state innovation, and funds cost sharing subsidies for the next two years.

On one hand, many moderates have wanted to lessen the cuts to Medicaid in the future and protect people with pre-existing conditions. Many moderates believe that the changes in the bill goes too far and that many people will be kicked off health insurance. For example, Sen. Dean Heller (R-NV) announced today he would oppose the bill due to extensive Medicaid cuts unless there was substantial changes. A pro-Trump super pac has announced an ad buy to pressure Sen. Heller to support the bill. Other senators such as Sen. Shelley Moore Capito (R-WV) and Sen. Rob Portman (R-OH) have also balked at the Medicaid cuts. Others such as Sen Lisa Murkowski (R-AK) and Sen. Susan Collins (R-ME) have opposed the elimination of funding to Planned Parenthood.

On the other side, conservatives believe that the bill does not go far enough in repealing Obamacare. Sen. Rand Paul (R-KY), Sen. Ron Johnson (R-WI), Sen. Ted Cruz (R-TX), and Sen. Mike Lee (R-UT) have announced opposition to the bill in current form. These senators believe that the bill does not succeed in lowering premiums because many of the regulations are still included such as community rating and guaranteed issue for people with pre-existing conditions. Sen. Rand Paul also lambasted the bill as Obamacare-lite due the similarity of the subsidy structure and a bailout to insurance companies due to the market stability fund. Sen. Ted Cruz has introduced an amendment called the Consumer Freedom amendment that will allow insurers to offer a plan that does not follow regulations if they offer one that does to lower premiums.

Leader McConnell will face a hard time this week trying to unify his conference around one bill given these stark differences. However, this opposition might be just a ploy to further these senators’ individual agendas and their amendments. Nevertheless, Mitch McConnell is a tactical political leader who knows how to push legislation through and always has a trick up his sleeve. If anyone could pass this bill, it would be Mitch McConnell.