Here's Why Trump's Commitment to Nominating Young Judges Will Leave a Mark on the Judiciary for Decades
The United States has yet to have a Generation X president (Barack Obama, born in 1961, is technically among the latter part of the Baby Boomer generation). But when President Trump nominated Neil Gorsuch, now 50, to fill a seat once held by the late Antonin Scalia, Gorsuch became the first Gen-Xer to join the U.S. Supreme Court. In fact, Trump has been nominating Gen-Xers exclusively for the High Court, and that is by no means a coincidence. If Trump has his way, there will be even more Gen X-ers on the Court—all of them far-right ideologues and rigid social conservatives who share the “strict constructionist” philosophy of Scalia and Justice Clarence Thomas.
In the past, presidents didn’t necessarily have a preference for Supreme Court nominees who were in their 40s or early 50s. For example, Justice Ruth Bader Ginsburg, now 85, was already 60 when President Bill Clinton appointed her in 1993. Judge Merrick Garland, who would be on the Supreme Court today instead of Gorsuch had the vindictive Senate Majority Leader Mitch McConnell not refused to even consider him, was 64 when he received Obama’s nomination. Trump, however, is being quite strategic in his emphasis on Gen-X nominees; he wants to make sure he’s nominating ideologues who are likely to still be on the Court 30 or 35 years from now—and Judge Brett Kavanaugh fits that description.
On Monday night, Trump officially announced that 53-year-old Brett Kavanaugh would be his nominee to replace Justice Anthony Kennedy, who is now 81 and retiring from the Supreme Court after 30 years at the end of the month. Born February 12, 1965, Kavanaugh is, like Gorsuch, a Gen-Xer—and if he lives as long as Ginsburg, he could still be on the Court in 2050. Trump knows that all too well.
Before Trump nominated Kavanaugh, others who were said to be on his “short list” of nominees included 46-year-old Amy Coney Barrett and 51-year-old Raymond Kethledge—both Gen-Xers, both “strict constructionists” in the Scalia/Thomas vein and a departure from the more libertarian-ish tendencies that Kennedy sometimes showed on social issues.
Nominated by President Ronald Reagan in 1987, Kennedy was chosen after Reagan appointee Robert Bork was rejected by Senate Democrats as well as the late Pennsylvania Sen. Arlen Specter (a Republican at the time). Bork was way too much of a wingnut for the 1987 Senate, whereas Kennedy—although conservative and right-wing—was more palatable to Senate Democrats. There was no way that Reagan was going to appoint someone as liberal as the late Chief Justice Earl Warren, but Reagan, the Senate Democrats and Specter essentially agreed that Kennedy was a fair compromise. And even though Kennedy is a fiscal conservative who has often sided with large corporations over workers, consumers and unions, he has definitely had a libertarian streak when it comes to social issues such as abortion, gay rights and same-sex marriage.
Kavanaugh, however, has no such nuance or complexity. Like Gorsuch, he favors a Scalia-ish “strict constructionist” view of jurisprudence. And it isn’t hard to imagine Gorsuch and Kavanaugh—if confirmed—voting to overturn the Roe v. Wade decision of 1973 as well as other right-to-privacy decisions that advanced sexual freedom in the U.S.
For Trump and the far-right Christian fundamentalists he is pandering to, it isn’t enough to nominate fiscal conservatives to the High Court—they must be social conservatives as well. One need only examine some of Kennedy’s rulings to see how much of a game-changer the more socially conservative Kavanaugh could be if confirmed.
Kennedy embraced the right-to-privacy concept, which was very much at work when the Burger Court passed Roe v. Wade 45 years ago (pre-Kennedy) and when Kennedy wrote the majority opinion in 2003’s Lawrence v. Texas—which struck down a Texas sodomy law and was hailed as a major victory for gay rights. Supporters of the “strict constructionist” philosophy, however, would argue that Roe v. Wade and Lawrence v. Texas were wrongly decided because they were a violation of states’ rights.
Scalia was very much a “strict constructionist”; he disagreed with Kennedy vehemently in Lawrence v. Texas and rejected the right-to-privacy concept that was at the heart of not only Lawrence v. Texas, but also, Roe v. Wade and the Warren Court’s 1965 ruling in Griswold v. Connecticut (which struck down a Connecticut law that banned the sale or use of contraception for married couples). And if Gorsuch and Kavanaugh were to rule that Roe v. Wade, Griswold v. Connecticut and Lawrence v. Texas were all wrongly decided because they violated states’ rights, everything from abortion to gay sex to contraception could be on the chopping block.
The fact that Trump nominated Kavanaugh over Barrett doesn’t necessarily mean that he has forgotten about her. It’s possible that if there are any more openings on the Supreme Court, Trump would consider her. And the Christian Right would love to see the 46-year-old Gen-Xer on Supreme Court for 30, 35 or even 40 years.
After Trump nominated Barrett for a seat on the U.S. Court of Appeals for the Seventh Circuit last year, the New York Times reported that she was a member of People of Praise—a predominant Catholic group that incorporates elements of Pentecostal fundamentalism (speaking in tongues, for example) and is considered a dangerous cult by mainstream Catholics. People of Praise requires members to swear an oath of loyalty to the group, and its deeply patriarchal ideology holds that while women can hold some leadership positions, they must ultimately submit to male authority.
Focus on the Family and other theocratic far-right groups would love to see someone like Barrett nominated to the Court and still ruling from the extreme right when she’s 85. And the way the Court is shaping up, the younger justices will be way to the right of the older ones.
It’s doubtful that there will be any more Baby Boomer nominees to the Supreme Court as long as Trump as president. Trump clearly likes his Supreme Court nominees younger, and he likes them far to the right in all respects.
If Kavanaugh is confirmed by the U.S. Senate and joins Gorsuch on the High Court, it will be a major victory for the president’s hard-right agenda.