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Texas This Week: Judge Brett Kavanaugh nominated to the SCOTUS

President Donald Trump announced Brett Kavanaugh as his pick for the U.S. Supreme Court. KVUE sits down with Jim Henson, director of the Texas Politics Project, to discuss what's next.

This week, President Donald Trump announced his pick for the U.S. Supreme Court; U.S. Court of Appeals Judge Brett Kavanaugh. In Texas This Week, Ashley Goudeau sits down with Jim Henson, Ph.D., director of the Texas Politics Project at the University of Texas at Austin, to discuss the pick and what happens next.

Ashley Goudeau: Let's start by talking a little bit about Judge Kavanaugh. Most if not all republicans are praising this pick by the president. Tell us why, what do they like about him?

Jim Henson: "Judge Kavanaugh appeals to lots of different factions of the Republican Party. His record is very conservative, so for ideological conservatives, they like him a lot. For more institutional or traditional republicans, as Senator Dick Durbin from Illinois said, he's kind of the Forrest Gump of republican politics. He's been present for lots of very partisan actions on the side of the Republican Party. He was part of the Starr inquiry that investigated Bill Clinton. He was part of the W. Bush campaign team, legal team, in the wake of the Florida election. But again, also has a very conservative judicial record, so he checks a lot of the boxes."

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Goudeau: But the democrats on the other hand, to no surprise, are not a fan.

Henson: "Well, the same things that republicans like, the democrats don't like. He's seen as, I think first and foremost, too partisan given his background, and too conservative for what most democrats want. The argument is that his politics will affect his judicial temperament. He's already served as a judge. He's already been confirmed, so there are some, there's going to be fairly easy pushback on that. But I think if you look at both democrats and republicans, what you see is just how deeply partisan the Supreme Court and the appointments have become."

Goudeau: Judge Kavanaugh was a law clerk for the man he's set to replace, retiring Justice Anthony Kennedy. Some think that maybe he's going to be a swing vote in the same way Kennedy was.

Henson: "Yeah, I think that that's probably not likely to be the case. That's one thing that he's done is that he clerked for Justice Kennedy, but he also has a broader track record of judicial decisions and political work, frankly, that I think reassure most people, particularly the people that need to be reassured, conservatives, that they don't have to worry about that and he brings a lot of things to the table that they really want. For example, a theory of a very strong executive branch and a president that should, you know, within the realm of constitution, function relatively unencumbered. I think that's going to worry a lot of democrats, but it also is something, kind of assuages some of these doubts about his time with Justice Kennedy."

Goudeau: But some of the things that he said after President Trump announced him kind of lead to or at least gave the impression that he is going to be, if confirmed, a justice who tries follows precedent.

Henson: "Well, I think his acceptance speech was quite a good example of the kind of signals you want to send going into a confirmation battle. You, as you say, talked about how much he admires and respects the law. Which winds up trying to assuage, probably not very effectively, but trying to assuage some of the doubts of democrats that he might want to reverse precedence. Most importantly, Roe v. Wade. But he also did a lot of other things in that speech that were fairly skillful to send the same kind of signal that he was an acceptable candidate, that he's not an extremist. You know, a lot of the anecdotes of his personal history and the work of his parents. You know, his references to hiring women and enjoying working with women. I mean that, those were all meant to send signals that this is not someone who is extreme."

Goudeau: For our viewers who may not be familiar with the process, explain to us what happens now for his confirmation.

Henson: "Well, immediately after his appointment, he began meeting with the key senators on Capitol Hill. There'll be a lot of that going on in the next several weeks. He'll go and he'll meet with senators. There are several that have said that they don't know him personally, although many do. And those senators will get the feel for him and ask, in a sense, almost preview some of the questions that will be asked about him later for those on the judiciary committee in public. The next step is there'll be judiciary committee hearings that will be public. He'll be questioned by the members of the judiciary committee about his judicial philosophy, his past, really anything they want to ask him and he'll do his best to be non-committal on issues going forward but to be respectful and convey that he is a good candidate. Some time after that, the judiciary committee will vote on him, in all likelihood it will move to the Senate floor and then there'll be a vote in the Senate on confirmation and that will be a simple majority vote in which he has to get half of the members present plus one. At that point, he will then be sworn in and become a justice should all that go according to plan."

Goudeau: And if he makes all of the republicans happy, that's all he needs technically.

Henson: "Yeah, right now, assuming that Senator McCain, who of course is ill and has not been present, the republicans have a 50-to-49 advantage in chamber, so the republicans really just have to hold all of their votes for this to work."

Goudeau: Let's talk a little bit about what this could mean for future cases. The big thing everyone talks about is Roe v. Wade. The President saying that he wanted to elect a justice, pick a justice that would reverse it. Someone that he considers to be pro life. Could we really see this law overturned?

Henson: "Well, I think we could. I mean, and I think this is the one of the core fears of opponents of Judge Kavanaugh's appointment. Frankly, this fear would be present or this worry would be present no matter who President Trump had appointed, given what candidates we knew were out there. It's one of the big questions because we know on one hand courts have had the tradition of respecting precedent. Roe v. Wade, even though it's been hemmed in in some ways, is still seen as a precedent that is fundamentally based in the right to privacy. And so there's been a certain amount of reluctance, even among some conservatives, to completely overturn Roe v. Wade. On the other hand, some of the conservative justices on the court have signaled that they're willing to do that. So there is a chance that that's going to happen. I think Judge Kavanaugh's appointment was meant to muddy the waters on that because he doesn't have a clear record on that."

Goudeau: And another thing that's interesting is when this came before the court in the 90s, Justice Kennedy was the justice who swung to keep Roe v. Wade.

Henson: "Yeah, there was a key case in the early 90s when Justice Kennedy was on the court and he was the person who basically prevented the court at that point, it's widely thought, from frontally assaulting and possibly overturning Roe v. Wade. That was now, it has been a while since that happened and so Roe v. Wade has now survived longer as a precedent, makes it a little bit harder to overturn it. But it's not out of the question. I mean, I think it's not an un-based fear on the part of opponents of the nomination. I would think that some moderates would say that Judge Kavanugh is of a temperament that he might not be willing to fundamentally reverse precedent. Though he will most certainly be open to further curtailing and kind of boxing Roe v. Wade in and limiting access to abortion without necessarily completely overturning it. But that's the question."

Goudeau: But the other thing that really will happen is, there are nine justices and anytime you take someone away and add someone new in, the whole dynamic can change.

Henson: "It does change the chemistry, and that's one of the things that's very unpredictable about the court and has led in the past to some justices, like Justice Kennedy, Justice Souter is another one, who behave unpredictably, or at least unexpectedly once they're appointed to the court. That's what's sort of lurking in the back of the mind of conservatives who are looking at this list. I don't think there are a whole lot of doubts about that."

Goudeau: And so it seems to be a game of just wait and see.

Henson: "Yeah, the process is going to work itself out. My expectation though is that they will move relatively quickly. I think, you know, for all the talk right now about careful vetting and we're going to give this careful consideration, there is a consensus I think among republicans that they want this done prior to the midterm elections in November and in enough time, frankly, for them to claim credit for it and for republicans to be able to go to their voters and say, 'we know the most committed among you want conservative justices and want to change the composition of the court.' We know from polling it's important to voters, they want to say they did that in time for it to affect people's voting decision, particularly among republicans their decision to vote or not to vote."

Goudeau: But it could also have the opposite effect because it could strum up and strengthen democrats.

Henson: "Certainly, this is not going to happen in a vacuum. And as we've seen, democrats are rallying. They have a real structural disadvantage here. As we've said, in the senate they really don't have enough votes. They're going to have to find something that is unknown at this point or at least not publicly known about Judge Kavanaugh, about his record, to undo this frankly. I mean, this is really on the rails to go through unless something blows up in the nomination. So democrats have to, are in a difficult position in terms of they can't, they want to gin up their base, they want to demonstrate that they're going to do everything that they can oppose this, knowing in the back of their minds that there's not much that they can do unless there's, unless they can find something wrong with the judge's case. It's not just the nomination that's at work here. If you look at who's being most vocal about this and who's really engaged, the night after, I think the night the nomination was announced, at a big democratic rally we saw Senators [Elizabeth] Warren, [Cory] Booker, [Kamala] Harris, [Bernie] Sanders, all people we expect to run for the presidency in 2020. So this is really going to play out, not just in the nomination, but in the politics afterwards."

The White House hopes to get Judge Kavanaugh confirmed by the start of the court's term on October 1.

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