President Donald J. Trump’s pick for the Supreme Court is a mystery on many issues involving tribal nations. But the political lines are clearly drawn and the Senate confirmation of his appointment will have all sorts of implications from the coming fall elections to survival of the Affordable Care Act.
Brent Kavanaugh is a favorite of conservatives. He’s young, 53, serves on the DC Court of Appeals, and he has clerked for the man he would replace, Associate Justice Anthony Kennedy.
The Trump administration pegs Kavanaugh as similar in nature to Neil Gorsuch. And in an interesting tweet last month, the White House said: “The President has appointed judges who faithfully apply the law and is working with State, local, and Tribal leaders to combat overreach.”
Even a capital T.
Gorsuch already had significant experience in Indian law before joining the Supreme Court. But the history for Kavanaugh is far less clear.
The legal blog, Turtle Talk, outlined a few of the tribal law cases with Kavanaugh participation. “In none of these cases did he write in support of tribal interests, though none of these opinions betrays any general anti-tribal leanings, either,” wrote Matthew L.M. Fletcher.
“None of these cases are high-profile matters with impacts going much beyond the tribes, and so there is little here to allow anyone to predict how a Justice Kavanaugh would decide an Indian law matter,” Fletcher wrote. “However, his record as a judge who is a reliable social conservative with a reputation suggesting he is hostile to abortion rights and LGBTQ rights, with ties to the Federalist Society, suggests he will be a difficult vote for tribal interests to pick up in any matter.”
Fletcher wrote that Kavanaugh did, however, participate “in at least one Indian law matter, as counsel of record filing an amicus brief for a conservative, anti-minority rights coalition of amici in Rice v. Cayetano: Rice v Cayetano Amicus Brief.”
A divided Senate must confirm Kavanaugh. Republicans hold a narrow 51-to-49 margin in the Senate, however, Sen. John McCain, R-Ariz., has been in Arizona fighting brain cancer. That means the Republicans have almost no room for defections. That is … unless Democrats join the majority. Three Democrats voted to support Gorsuch’s nomination, Senators Heidi Heitkamp in North Dakota, Joe Donnelly from Indiana, and Joe Manchin from West Virginia.
Two Republican Senators are also considered possible “no” votes over the issue of abortion rights, Alaska’s Lisa Murkowski and Maine’s Susan Collins.
However Murkowski told Alaska Public Media’s Liz Ruskin that she is going to take her time to review the candidate. “I hope that Alaskans will weigh in,” Murkowski said, “but I also hope that they will give it thoughtful consideration, too, and not just a knee-jerk, ‘You should support him because he’s Trump’s pick,’ or ‘You should not support him because he’s Trump’s pick.’”
Montana Democrat Jon Tester said: “I take my constitutional duty to screen the President's nominees very seriously, and in the coming weeks I look forward to meeting with Judge Kavanaugh. Montanans have a lot on the line with this next Supreme Court Justice so I urge my colleagues on both sides of the aisle to put politics aside and do what's best for this nation.”
Democrats who are running in states that supported President Trump will get enormous pressure to vote for the nominee. This is especially important for Heitkamp and Tester who are up for re-election this year.
One area of policy interest, especially for Senate Democrats, might be the judge’s views on health care policy.
Kaiser Health News reported that Democrats “are sounding the alarm that confirming the conservative District Court judge could jeopardize one of the Affordable Care Act's most popular provisions — its protections for people with pre-existing health conditions.” Democrats point to a [case filed in Texas](et_al-ACA_Complaint(02-26-18%29.pdf) by 20 Republican state attorneys general. The AGs from these states charge that because the tax bill passed by Congress last year eliminated the tax penalty for not having health insurance, and, therefore, it rendered the entire federal health law void.
Mark Trahant is editor of Indian Country Today. He is a member of the Shoshone-Bannock Tribes. Follow him on Twitter -@TrahantReports