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U.S. President Donald Trump’s Unexpected Supreme Court Pick

Democrats worried Kavanaugh’s solidly conservative record as an appeals court judge in the Washington, D.C., circuit would threaten landmark rulings on abortion, gay marriage and other progressive causes.

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The Supreme Court building in Washington, Feb. 13, 2016. VOA

President Donald Trump has boasted that adding two conservative justices to the U.S. Supreme Court is among his biggest achievements.

However, one of Trump’s picks hasn’t quite followed the script.

Since being sworn in last October, Justice Brett Kavanaugh has defied the expectations of some by occasionally breaking with the court’s conservative bloc to join liberals such as Justice Stephen Breyer.

An analysis of Kavanaugh’s 22 early decisions shows that he’s stuck close to Chief Justice John Roberts, who has been gradually carving a more moderate path during the Trump era.

“The expectation was that he would probably be in the same or similar voting sections with his conservative colleagues more often than he would be with his liberal colleagues,” said Adam Feldman, a court watcher who runs the blog Empirical SCOTUS.

FILE - Supreme Court nominee Brett Kavanaugh testifies before the Senate Judiciary Committee on Capitol Hill in Washington, Sept. 27, 2018.
Supreme Court nominee Brett Kavanaugh testifies before the Senate Judiciary Committee on Capitol Hill in Washington, Sept. 27, 2018. voa

Feldman, who conducted the analysis, said “the fact that [Kavanaugh] joined with the liberals in a higher percentage of decisions, in total, this term is somewhat surprising.”

To be sure, it’s too early to draw conclusions based on such a small number of cases. Still, conservatives are less effusive of Kavanaugh’s record compared with Trump’s other pick, Justice Neil Gorsuch.

Gorsuch is often compared to the late Antonin Scalia, the court’s conservative intellectual anchor whom he replaced in 2017, while Kavanaugh veers to the right of Anthony Kennedy, the centrist former justice whose seat he occupies.

FILE - Associate Justice Neil Gorsuch joins other justices of the U.S. Supreme Court for an official group portrait at the Supreme Court Building in Washington, June 1, 2017.
Associate Justice Neil Gorsuch joins other justices of the U.S. Supreme Court for an official group portrait at the Supreme Court Building in Washington, June 1, 2017.. VOA

“Justice Kavanaugh, so far has been cautious in the sense that he usually almost always joins the majority,” said Curt Levey, president of the conservative Committee for Justice.

“He’s voted the same as Roberts in the vast majority of cases,” Levey said, “and Roberts has slowly been drifting towards the center.”

Last summer, Kennnedy, a Republican appointee who had cast the decisive vote in a number of consequential cases in recent years, announced his retirement. Trump named Kavanaugh, who like Gorsuch had once been a law clerk for Kennedy, as his replacement.

Democrats worried Kavanaugh’s solidly conservative record as an appeals court judge in the Washington, D.C., circuit would threaten landmark rulings on abortion, gay marriage and other progressive causes.

The court has yet to decide more than half of the cases it has heard this term, which ends in June. Pending matters include such controversial issues as partisan gerrymandering of congressional district boundaries and whether to include a citizenship question in the 2020 census.

‘Comfort’ on the bench

Kavanaugh entered the court amid heated allegations that he had sexually assaulted a woman while in high school. He strenuously denied the accusations, and a divided Senate eventually confirmed him by one of the narrowest margins for a Supreme Court justice in history.

But if Kavanaugh was rattled by the experience, he didn’t show it on the day he joined the court last October. The justices heard arguments in two cases about a little-known law that stipulates steep sentencing to people who have committed certain offenses in the past.

Jeffrey Fisher, a special counsel at the O’Melveny law firm and a professor at Stanford Law School, argued one of the cases. He said he was struck by how at ease Kavanaugh appeared, sitting next to liberal Justice Elena Kagan, as he has every day since.

“You would never know whether he had just been confirmed 99 to nothing in the Senate or what we ended up having,” said Fisher, who has argued 38 cases in the Supreme Court, including three this term. “His comfort with the legal issues showed through right away.”

By all accounts, that level of comfort has continued. So too has Kavanaugh’s budding alliance with Roberts.

Conservative and liberal leanings

In December, Kavanaugh joined the chief and the four liberal justices in declining to review lower-court rulings that blocked efforts to defund Planned Parenthood, which supports abortion rights.

In a February, in a case known as Garza v. Idaho, Kavanaugh and Roberts joined the liberal wing to vote in favor of an Idaho inmate’s right to appeal even after he waived the right.

FILE - U.S. Supreme Court Chief Justice John Roberts attends an event at the Victoria University of Wellington in New Zealand, July 26, 2017.
U.S. Supreme Court Chief Justice John Roberts attends an event at the Victoria University of Wellington in New Zealand, July 26, 2017. VOA

And in a March, Kavanaugh voted with the liberal to rule that manufacturers of asbestos-dependent equipment used on Navy ships had a duty to warn their users.

On more contentious issues, however, Kavanaugh has aligned with the conservative majority.

In March, he joined a 5-4 conservative ruling that the government could hold indefinitely immigrants who have completed sentences for crimes that subject them to deportation. This month, he joined them again to reject a death row inmate’s claim that Missouri’s execution method inflicts unconstitutionally cruel pain.

There is talk that the entente between Kavanaugh and Roberts could foil a rightward move of the court. But Levey said Kavanaugh and Roberts have their own reasons for being cautious.

Also Read: Scientists Facilitate The Regulatory Process For Herbal Drugs

“Roberts because he’s the chief justice and he wants the court to be seen as not extreme, and Kavanaugh because he’s new on the bench,” Levey said.

Fisher added that if anything, the court has moved incrementally to the right.

“And the reason I would say that is that we haven’t yet seen Justice Kavanaugh cast a deciding vote with the liberals,” Fisher said, “which is something Justice Kennedy used to do from time to time.” (VOA)

Next Story

Economy to Overcome Other Issues in 2020, says Trump

President Donald Trump is hoping that simple message in 2020 will help foil his eventual Democratic Party challenger. 

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President Donald Trump
U.S. President Donald Trump attends a Keep America Great Rally at the Rupp Arena in Lexington, Kentucky, U.S. VOA

“It’s the economy, stupid” has been a catchphrase of U.S. presidential politics since the 1992 campaign, when Bill Clinton unseated incumbent George H.W. Bush. Nearly three decades later, U.S. President Donald Trump is hoping that simple message in 2020 will help foil his eventual Democratic Party challenger.

Trump — in tweets, at political rallies and in remarks to reporters — constantly emphasizes the performance of the U.S. economy, stock market surges, low unemployment rates and his tax cuts to boast he is doing a great job as president.

Economists and political analysts are divided on whether that message will enable the incumbent to stay in office beyond January 2021.

Culture war, partisan split

Ever since Clinton, “we’ve all kind of assumed that should be true. And I think for the most part, it is,” said Ryan McMaken, senior editor and economist at the Mises Institute, a politics and economics research group in Alabama. He cautioned, though, that Trump finds himself on one side of a culture war that his predecessors did not have to confront, as well as a deep partisan divide on consumer confidence.

Walmart Supercentre
Balo Balogun labels items in preparation for a holiday sale at a Walmart Supercenter, in Las Vegas. Black Friday once again kicks off the start of the holiday shopping season. But it will be the shortest season since 2013 because of Thanksgiving falling on the fourth Thursday in November, the latest possible date it can be. VOA

Policy analyst James Pethokoukis at the Washington-based American Enterprise Institute, a public policy research group, also is cautious about the economy prevailing over all other issues.

“Just having a strong economy is not going to guarantee you re-election,” he said. “People often point back to the 2000 election, which occurred after a decade of tremendous economic growth any way you want to measure it — gross domestic product, jobs and wage growth. And yet, [Clinton’s vice president] Al Gore still lost that election to George W. Bush.”

McMaken questioned whether voters in key swing states — such as Wisconsin, Michigan, Pennsylvania and Ohio — who cast ballots for Trump in 2016 were experiencing enough of the touted economic performance to vote again for the president.

Overall, however, “it’s not a bad economy to run on if you’re Donald Trump,” said Pethokoukis.

Trump, said to have concerns about the direction of the economy ahead of next November’s election, will likely push for more tax cuts, passage of a renegotiated North American trade pact and continued pressure on the country’s central banking system, the Federal Reserve, to lower interest rates.

A LB Steel LLC's employee manufactures a component
A LB Steel LLC’s employee manufactures a component for new Amtrak Acela trains built in partnership with Alstom in Harvey, Illinois, U.S. VOA

Trouble ahead?

There are rumblings of economic storm clouds on the horizon. The impact can be seen in Trump’s trade war with China, which has hurt U.S. farmers and raised prices for consumer goods. It’s also reflected in the Institute for Supply Management’s Manufacturing Index, an underperforming U.S. Private Sector Job Quality Index and a ballooning record national debt, in addition to the worrying level of money owed to creditors by middle-class Americans.

“We’ve actually been in a sort of a manufacturing recession, seen a shrinkage of factory jobs, the exact kinds of jobs that I’m sure that people voting for the president thought would be a lot better now,” said Pethokoukis.

So far, none of this has prompted a major stock market correction.

“There seems to be a lot of adaptations in the markets to Trump’s America. That may work to his advantage,” said the Mises Institute’s McMaken.

Analysts note a lack of emphasis on economic platforms so far by the leading Democratic U.S. presidential candidates seeking to oust Trump next year.

But such a platform is likely to be touted when the opposition party holds its convention next July in Milwaukee and picks its campaign ticket. Pethokoukis suggested the Democratic Party should devise a plan with a goal to boost American worker productivity, which has flatlined for years.

The great divide

McMaken pointed out that the widening chasm between the well-off and those struggling economically in the United States makes Trump vulnerable — something emphasized by left-leaning Democratic presidential contenders such as Bernie Sanders and Elizabeth Warren.

Donald Trump says the economy isn't doing well
Tents and tarps erected by homeless people are shown along sidewalks and streets in the skid row area of downtown Los Angeles, California, U.S. VOA

“On the ground level, I would say just in general, the economy isn’t doing as well,” concluded McMaken.

ALSO READ: Greed For Power May Demolish The Democracy

Amid an impeachment drive by the Democrats, Trump is repeatedly hammering on a specific message to those questioning his suitability for office while being impressed with the performance of their pension accounts during his presidency.

“Love me or hate me, you’ve got to vote for me,” Trump said at a rally in New Hampshire in August, warning that Americans’ investments portfolios would go “down the tubes” if he lost next year’s election. (VOA)