In November 2013, then Senate Majority Leader Harry Reid (D-Nev.) exercised the “nuclear option” that took the dramatic step of ending the Senate filibuster for most presidential nominations, allowing President Obama’s picks to be confirmed by a simple majority.
Following the move, Senate Minority Leader Mitch McConnell (R-Ky.) warned Democrats they would regret it “a lot sooner than you think.”
McConnell exacted his retribution for the decision by ending the filibuster for U.S. Supreme Court nominations following President Trump’s 2016 election, when Republicans also maintained their Senate majority.
This, of course, led to the confirmation of Justice Neil Gorsuch in 2017 to replace the departed Justice Antonin Scalia.
In July, the announcement of Justice Anthony Kennedy’s retirement handed the president the opportunity to appoint a new justice for the second time in as many years and give the court what many argue is a conservative leaning 5-4 majority.
Senators released an outpouring of support for the nominated Judge Brett Kavanaugh, noting his esteemed qualifications and impeccable record of constitutional conservatism.
Meanwhile, Democrats ratcheted up their attacks on Trump’s nominee with Senate Minority Leader Chuck Schumer (D-N.Y.) stating he would “oppose Judge Kavanaugh’s nomination with everything I have.”
Everything Sen. Schumer has likely won’t be enough to prevent the Republican majority in the Senate from confirming Kavanaugh in a timely manner, placing pressure on Senate Democrats in tough mid-term elections in Trump-popular states.
However, these Democrats could lend their support to Kavanaugh once McConnell has shored up the votes to ensure confirmation.
There is no room for error, though, with a 51-vote majority once Sen. John McCain’s replacement is named.
The rhetoric coming out of Democrats and their supporters isn’t anything new; Justice Gorsuch faced similar opposition but ended up being confirmed in 66 days and with a 54-45 vote that included the support of three Democrats from red-leaning states: Joe Manchin (W.Va.), Heidi Heitkamp (N.D.) and Joe Donnelly (Ind.).
A Fair Arbiter
As a judge of the U.S. Court of Appeals for the D.C. Circuit for the past 12 years, Kavanaugh’s previous decisions have shown him to be a fair arbiter in decisions affecting labor issues and the merit shop philosophy.
In the 2014 District of Columbia v. Department of Labor case, Kavanaugh rejected the DOL’s notion that the Davis-Bacon Act, meant only to apply to federal funded construction projects, could extend to privately funded construction projects such as CityCenterDC, a mixed-used development consisting of condominiums, apartments and offices.
The DOL responded to Kavanaugh that CityCenterDC was in fact a “public work” because it was to be built on a plot of land owned by the District of Columbia, but Kavanaugh’s decision stated that CityCenterDC could not be considered a public work because its construction was not publicly funded, nor was the district a party to the construction contracts for the project.
Kavanaugh’s history also shows he is willing to hold regulatory agencies accountable for aggressive federal overreach. In the 2014 D.C. Circuit case, White Stallion Energy Center LLC v. EPA, The U.S. Court of Appeals concluded that the Environmental Protection Agency does not need to consider costs when imposing emission regulations on energy companies.
Kavanaugh dissented this ruling, arguing that it is “unreasonable for the EPA to exclude the consideration of costs” when deciding whether to impose air quality regulations.
A year later, a similar case, Michigan v. EPA, made it to the Supreme Court. In a 5 to 4 majority, the Supreme Court concluded that the EPA must consider costs when deciding whether to impose emission regulations, vindicating Kavanaugh’s dissent.
Considering his concise rulings and effective interpretation of the laws, Associated Builders and Contractors supports Judge Kavanaugh’s candidacy and continues to monitor the progression of his nomination.
Sen. McConnell has expressed his desire for the Senate to confirm Kavanaugh before the October session of the Supreme Court and the mid-term elections in November.
