Vox - Brett Kavanaugh is Trump’s newest Supreme Court nomineehttps://cdn.vox-cdn.com/community_logos/52517/voxv.png2019-09-16T17:40:00-04:00http://www.vox.com/rss/stream/173154372019-09-16T17:40:00-04:002019-09-16T17:40:00-04:00Mitch McConnell isn’t too concerned about a new sexual misconduct allegation against Kavanaugh
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<img alt="Senate Votes On Confirmation Of Brett Kavanaugh To The Supreme Court" src="https://cdn.vox-cdn.com/thumbor/Rc2F6PN9HUv16L6PPNykBbRWZB4=/608x0:5472x3648/1310x983/cdn.vox-cdn.com/uploads/chorus_image/image/65258611/1050428990.jpg.0.jpg" />
<figcaption>Senate Majority Leader Mitch McConnell (R-KY) talks to reporters after the Senate voted to confirm Supreme Court nominee Judge Brett Kavanaugh at the U.S. Capitol. | Chip Somodevilla/Getty Images</figcaption>
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<p>The Senate Majority Leader says Democrats are “hysterically” calling for Brett Kavanaugh’s impeachment.</p> <p id="RFc2bf"><a href="https://www.vox.com/policy-and-politics/2017/7/17/15970034/mitch-mcconnell-senate-health-bill">Senate Majority Leader Mitch McConnell</a> isn’t too concerned about <a href="https://www.vox.com/2019/9/16/20868338/brett-kavanaugh-new-york-times-impeachment-allegations">a new sexual misconduct allegation</a> that’s been levied against <a href="https://www.vox.com/2019/9/16/20868518/kavanaugh-new-york-times-stier-yale-ramirez-fbi-investigation">Supreme Court Justice Brett Kavanaugh.</a> In fact, he’s dismissed it out of hand as a “reenactment” of a “sad and embarrassing chapter Senate Democrats ... wrote last September.”</p>
<p id="nM6QRe">It’s not a particularly surprising position — given how quickly McConnell questioned other misconduct allegations Kavanaugh faced last year — but it further underscores just how committed Republicans are to rallying behind President Donald Trump’s second Supreme Court justice. </p>
<p id="GqDeoR">“For anybody who has been reading the news the past few days, it’s probably felt a little like <em>Groundhog Day</em>,” McConnell said during floor remarks on Monday, slamming a New York Times report that included a new misconduct allegation against Kavanaugh as “poorly sourced” and “thinly reported.” </p>
<p id="VlDsoA">The Times story, from <a href="https://www.nytimes.com/2019/09/14/sunday-review/brett-kavanaugh-deborah-ramirez-yale.html">Robin Pogrebin and Kate Kelly</a>, cites corroboration for an allegation of sexual misconduct that was brought against Kavanaugh by former Yale classmate Deborah Ramirez last year. It also highlights another allegation of sexual misconduct that involved Kavanaugh exposing his genitalia to a female classmate at a party, though the woman involved in the incident reportedly does not recall it. Kavanaugh has denied Ramirez’s allegation and declined to comment on the second accusation, when asked by Pogrebin and Kelly. </p>
<p id="suJRwQ">Several Democratic presidential candidates including <a href="https://www.vox.com/2019/9/15/20866930/kamala-harris-julian-castro-brett-kavanaugh-impeachment">Sens. Kamala Harris and Elizabeth Warren</a> have since called for Kavanaugh’s impeachment after the publication of the article, an effort Republicans have broadly scoffed at. </p>
<p id="JHlYhb">McConnell’s response this week echoes the approach he took last fall. Following allegations against Kavanaugh last year, including one from Palo Alto University Professor Christine Blasey Ford, who accused the then-nominee of sexually assaulting her when they were in high school, McConnell sought to barrel forward with the process. </p>
<p id="d4PnVg">“In the very near future, Judge Kavanaugh will be on the United States Supreme Court,” <a href="https://www.usatoday.com/story/news/politics/2018/09/21/mitch-mcconnell-were-going-plow-right-through-ford-allegation/1380905002/">McConnell said at the time</a>. “Keep the faith, don’t get rattled by all of this. We’re going to plow right through it and do our job.”</p>
<p id="SFRAT9"><a href="http://www.msnbc.com/rachel-maddow-show/what-mcconnell-missing-the-debate-over-fbi-background-checks">McConnell was also initially resistant</a> to an FBI investigation into the allegations from Ford and Ramirez, and only caved on this issue after former Arizona Sen. Jeff Flake pressured him into considering it. </p>
<p id="RF0dYw">At the time, he argued that Blasey Ford’s allegation was missing corroboration, despite evidence that she had gathered to substantiate the claim. This time around, it’s clear he’s content to discredit the allegation and ignore it completely. </p>
<h3 id="jgpcBe">Senate Republicans are continuing to stick by Kavanaugh</h3>
<p id="wdUwLS">Much like McConnell, most Senate Republicans see the new misconduct allegation as a political ploy by Democrats to reignite the contentious fight over Kavanaugh’s Supreme Court seat. Thus far, none have indicated that they’re particularly interested in further review of the allegation raised by the Times report. </p>
<p id="kBecER">“My heart goes out to Justice Kavanaugh’s family for being forced to endure this ridiculous treatment once again,” said Senate Judiciary Chair Lindsey Graham in a tweet. “There’s nobody they don’t want to impeach,” said Sen. Ted Cruz, of Democrats, this past weekend.</p>
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<p lang="en" dir="ltr">The latest attacks leveled against Brett Kavanaugh are beyond the pale. <br><br>My heart goes out to Justice Kavanaugh’s family for being forced to endure this ridiculous treatment once again.</p>— Lindsey Graham (@LindseyGrahamSC) <a href="https://twitter.com/LindseyGrahamSC/status/1173674781192966145?ref_src=twsrc%5Etfw">September 16, 2019</a>
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<p id="OGVZ2D">Some Congressional Republicans, and the White House, are operating off a series of talking points compiled by a conservative organization called the Article III Project, <a href="https://news.yahoo.com/conservative-group-known-for-hardball-tactics-leads-charge-in-kavanaugh-defense-210851202.html">Yahoo’s Brittany Shepherd reports.</a> These responses are focused on discrediting the allegations that have been raised against Kavanaugh, and focus on questioning The Times report, which did not initially say the woman involved in the new allegation did not remember it. </p>
<p id="qURlxG">“Here they go again,” McConnell emphasized on Monday, suggesting that Democrats were “hysterically” pushing for Kavanaugh’s impeachment. </p>
<p id="8GTs5q">McConnell also tied Democrats’ critiques of Kavanaugh to his larger push to remake the federal judiciary and confirm as many judges as possible under Republicans’ Senate majority. The recent Democratic pushback toward Kavanaugh is a “deliberate effort to attack judicial independence,” he said. </p>
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https://www.vox.com/2019/9/16/20869139/mitch-mcconnell-brett-kavanaugh-senate-republicansLi Zhou2019-09-16T16:50:00-04:002019-09-16T16:50:00-04:00The allegations against Brett Kavanaugh ignited national controversy last year. Now it’s happening again.
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<img alt="A photo illustration of Supreme Court Justice Brett Kavanaugh and Capitol buildings." src="https://cdn.vox-cdn.com/thumbor/K6J4PL63O-GtY1xLY0JKGWGJFZA=/225x0:1576x1013/1310x983/cdn.vox-cdn.com/uploads/chorus_image/image/65257683/kav_explainer_board_1.0.jpg" />
<figcaption>Christina Animashaun/Vox</figcaption>
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<p>New reporting by the New York Times bolsters the sexual misconduct allegations against him. It could have an impact on the 2020 elections.</p> <p id="yCn16O">On October 6, 2018, the Senate <a href="https://www.vox.com/2018/10/6/17941524/kavanaugh-confirmation-takeaways">voted to confirm Brett Kavanaugh</a> to the United States Supreme Court.</p>
<p id="z1Cmqt">The vote happened just weeks after women came forward to accuse Kavanaugh of sexual misconduct: Christine Blasey Ford, who said Kavanaugh sexually assaulted her when the two were in high school, and Deborah Ramirez, who said Kavanaugh thrust his naked penis in her face when the two were undergraduates at Yale.</p>
<p id="jABxqV">At the time, most public attention focused on Ford’s allegation, especially after <a href="https://www.vox.com/policy-and-politics/2018/9/27/17910214/christine-blasey-ford-senate-testimony-brett-kavanaugh-hearing">she testified before the Senate Judiciary Committee</a> last September, saying that she was “100 percent” certain it was Kavanaugh who assaulted her (Ramirez did not testify). Now, <a href="https://www.nytimes.com/2019/09/14/sunday-review/brett-kavanaugh-deborah-ramirez-yale.html">new reporting by the New York Times</a> bolsters Ramirez’s account — and reporters have found another Yale classmate who says he saw similar behavior by Kavanaugh at a different party. </p>
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<img alt="Christine Blasey Ford holds up her right hand to be sworn in at a Senate Judiciary Committee." data-mask-text="false" src="https://cdn.vox-cdn.com/thumbor/d4fpx9BTpWcDYBGrQB_XQ82ZUwc=/800x0/filters:no_upscale()/cdn.vox-cdn.com/uploads/chorus_asset/file/19205436/GettyImages_1042242522.jpg">
<cite>Melina Mara/Pool/The Washington Post via Getty Images</cite>
<figcaption>Christine Blasey Ford is sworn in at a Senate Judiciary Committee hearing on September 27, 2018.</figcaption>
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<p id="o8oGDf"><a href="https://www.vox.com/policy-and-politics/2019/9/16/20868259/brett-kavanaugh-allegation-new-york-times-controversy-explained">The Times generated controversy</a> on its own with its framing of the story, including a quickly deleted tweet that seemed to make light of Ramirez’s allegation. But regardless of how they were initially unveiled, the new details have big implications for the Supreme Court and the 2020 elections.</p>
<p id="AT5wrF">Even before the new allegation came to light, Americans had doubts about whether Kavanaugh would be an impartial justice. And this term, which opens in October, the Court could face high-profile cases involving sex discrimination, abortion rights, and more. The new details likely mean Kavanaugh and the Court as a whole will face even more scrutiny as they make decisions that affect Americans’ lives. And voters may have the Court on their minds more than usual when they cast their ballots next year.</p>
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<img alt="Supreme Court Justice Brett Kavanaugh holding up his right hand as his swearing-in ceremony." data-mask-text="false" src="https://cdn.vox-cdn.com/thumbor/NCIW6RQLeD_Pa00H0uGhbz8ON5A=/800x0/filters:no_upscale()/cdn.vox-cdn.com/uploads/chorus_asset/file/19205428/GettyImages_1047866662.jpg">
<cite>LightRockMichael Brochstein/SOPA Images/Getty Images</cite>
<figcaption>Former Supreme Justice Anthony Kennedy swearing in Brett Kavanaugh as an Associate Justice of the Supreme Court on October 8, 2018.</figcaption>
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<h3 id="TC8GZ3">Two New York Times reporters uncovered new details about the Kavanaugh allegations</h3>
<p id="xM9Co4">Ramirez was the second woman to make a public allegation of sexual misconduct against Kavanaugh, coming forward last September, several days after Ford <a href="https://www.washingtonpost.com/investigations/california-professor-writer-of-confidential-brett-kavanaugh-letter-speaks-out-about-her-allegation-of-sexual-assault/2018/09/16/46982194-b846-11e8-94eb-3bd52dfe917b_story.html">told her story to the Washington Post</a>. At the time, Ramirez told <a href="https://www.newyorker.com/news/news-desk/senate-democrats-investigate-a-new-allegation-of-sexual-misconduct-from-the-supreme-court-nominee-brett-kavanaughs-college-years-deborah-ramirez">Ronan Farrow and Jane Mayer of the New Yorker</a> that at a party during the 1983-84 school year, Kavanaugh thrust his penis in her face. “I was embarrassed and ashamed and humiliated,” she said.</p>
<p id="fuUIFt">Ramirez’s allegation got significantly less public attention than Ford’s account. Only Ford testified before the Senate Judiciary Committee, and she became the focus of attacks from the right (including President Trump, who <a href="https://www.vox.com/2018/10/3/17932024/trump-brett-kavanaugh-christine-ford-julie-swetnick">mocked her at a rally</a>), as well as a symbol of resistance for many survivors of sexual misconduct and supporters of the <a href="https://www.vox.com/metoo">#MeToo movement</a>. (A third woman, <a href="https://www.nytimes.com/2018/09/26/us/politics/julie-swetnick-avenatti-kavenaugh.html">Julie Swetnick</a>, said she saw Kavanaugh at parties where women were raped but did not report seeing Kavanaugh actually assault someone.)</p>
<p id="qAaUal">“I am here today not because I want to be,” <a href="https://www.vox.com/2018/9/26/17907462/christine-blasey-ford-testimony-brett-kavanaugh-hearing">Ford said</a> in her opening testimony before the committee. “I am terrified.” </p>
<p id="PEWOk6">However, she said, “my motivation in coming forward was to provide the facts about how Mr. Kavanaugh’s actions have damaged my life, so that you can take that into serious consideration as you make your decision about how to proceed.”</p>
<p id="Ym4F1d">Asked how certain she was that Kavanaugh had assaulted her, <a href="https://www.vox.com/policy-and-politics/2018/9/27/17910214/christine-blasey-ford-senate-testimony-brett-kavanaugh-hearing">she replied</a>, “100 percent.”</p>
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<img alt="Christine Blasey Ford looks over her eyeglasses during her testimony at the Senate." data-mask-text="false" src="https://cdn.vox-cdn.com/thumbor/sgZuaBBcPEEqI0CJO6eMXuSKk9A=/800x0/filters:no_upscale()/cdn.vox-cdn.com/uploads/chorus_asset/file/19205445/GettyImages_1042080708.jpg">
<cite>Melina Mara-Pool/Getty Images</cite>
<figcaption>Christine Blasey Ford answers questions during the Senate Judiciary Committee hearing on September 27, 2018.</figcaption>
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<p id="8Qu01w">Ford’s testimony moved the nation, with even Trump <a href="https://fortune.com/2018/09/28/trump-ford-credible-witness/">initially calling her</a> “very credible.” At protests around the country, supporters held signs reading, “I believe Dr. Ford.” The allegations against Kavanaugh — and Ford’s especially — became a flashpoint in the ongoing national reckoning around sexual misconduct and gender inequality, with 56 percent of voters saying in <a href="https://view.publitas.com/perryundem-research-communication/kavanaugh-ford-survey-report_f/page/37">a poll last December</a> that the hearings made them think about sexism in society.</p>
<p id="ma0Z9x">Kavanaugh denied the allegations against him and ultimately was confirmed despite them. But on Saturday, <a href="https://www.nytimes.com/2019/09/14/sunday-review/brett-kavanaugh-deborah-ramirez-yale.html">Times reporters Robin Pogrebin and Kate Kelly</a> brought the allegations back to the forefront of public consciousness with new details about Ramirez’s account. Their story was published in the New York Times Sunday Review, part of the Times Opinion section. It was adapted from their book, <em>The Education of Brett Kavanaugh: An Investigation</em>, to be published on Tuesday.</p>
<p id="7SGvzR">Last year, Kavanaugh argued that if what Ramirez described had really happened, it would have been “the talk of campus.” In fact, Pogrebin and Kelly write, “our reporting suggests that it was.” </p>
<p id="eDYDWn">Specifically, the reporters spoke with at least seven people who had heard about the allegation long before Ramirez went public with it, including two people who heard about it just days after the party took place.</p>
<p id="Lp9qPJ">Meanwhile, another Yale alum, Max Stier, says he witnessed Kavanaugh with his pants down at a different party, with friends pushing his penis into the hand of a different female classmate, Pogrebin and Kelly report. The female classmate did not speak to the Times and friends say she does not recall the incident, the reporters clarified after the story was first published.</p>
<p id="fRENd3">Still, the new details bolster Ramirez’s allegation and suggest a possible pattern of behavior for Kavanaugh.</p>
<h3 id="w6Ndxp">The new reporting has led to questions around the FBI investigation, calls for Kavanaugh’s impeachment, and criticism of the Times</h3>
<p id="2LyyzL">The new details made public by Pogrebin and Kelly have led to questions about how Ramirez’s allegations were investigated last year. In the wake of Ford’s testimony, the FBI performed an investigation into both women’s allegations. The investigation was highly limited in scope; as <a href="https://www.vox.com/policy-and-politics/2018/10/5/17940738/fbi-investigation-kavanaugh-thorough-limits">Vox’s German Lopez noted</a> last year, the terms of the inquiry were set by the White House and investigators declined to interview several people Senate Democrats wanted to hear from. </p>
<p id="78Z9if">Eventually, Republicans announced that the investigation had produced no corroborating evidence supporting Ford’s and Ramirez’s allegations, and the FBI inquiry may ultimately have served less to get at the truth than to provide cover for swing Republicans, including Sens. Jeff Flake of Arizona and Susan Collins of Maine, to vote to confirm Kavanaugh.</p>
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<cite>Mark Wilson/Getty Images</cite>
<figcaption>Sen. Jeff Flake (R-AZ) and his wife Cheryl hurry to the Senate floor for a cloture vote on the nomination for Brett Kavanaugh on October 5, 2018 in Washington, DC. Sen. Flake voted yes for the Senate to proceed to a final vote. </figcaption>
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<p id="aDYHuo">But Pogrebin and Kelly’s reporting shows how limited the investigation really was. The reporters note that although Ramirez gave the FBI a list of at least 25 people who could potentially corroborate her account, the bureau interviewed none of them.</p>
<p id="MhNRn5">Two agents interviewed her but told her, “We have to wait to get authorization to do anything else,” her lawyer Bill Pittard told the Times. “It was almost a little apologetic,” he said.</p>
<p id="bXzCam">Meanwhile, the FBI did not investigate Stier’s account, though he reached out to both the bureau and senators about it.</p>
<p id="0vFMaT">The fact that two reporters were apparently able to turn up more information about Ramirez’s allegation than the FBI has led to <a href="https://www.cbsnews.com/news/brett-kavanaugh-sexual-misconduct-accusation-sets-off-calls-for-supreme-court-impeachment/">calls for a new investigation</a> into the allegations. It’s also led to calls for Kavanaugh’s impeachment by several Democratic presidential candidates, including <a href="https://www.vox.com/2019/9/15/20866930/kamala-harris-julian-castro-brett-kavanaugh-impeachment">Sens. Kamala Harris and Elizabeth Warren</a> and former Housing and Urban Development Secretary Julián Castro.</p>
<p id="g2rUlt">Impeaching Kavanaugh would require the support of two thirds of the Senate, as <a href="https://www.vox.com/policy-and-politics/2019/9/16/20867558/remove-supreme-court-brett-kavanaugh-no-impeachment">Vox’s Ian Millhiser notes</a> — an unlikely prospect given the current Republican majority. There may be another way to remove Kavanaugh by court proceeding, based on a provision in the Constitution that federal judges and justices “<a href="https://www.law.cornell.edu/constitution/articleiii">shall hold their offices during good behaviour</a>.” But whatever happens, Republicans in Congress are likely to back Kavanaugh and resist his removal.</p>
<p id="LrXzKp">Meanwhile, <a href="https://www.vox.com/policy-and-politics/2019/9/16/20868259/brett-kavanaugh-allegation-new-york-times-controversy-explained">the New York Times has generated some controversy</a> of its own with the framing of the Kavanaugh story. On Saturday, the official Twitter account of the Times Opinion section <a href="https://www.washingtonpost.com/nation/2019/09/16/new-york-times-apologizes-inappropriate-offensive-tweet-about-sexual-misconduct-allegation-against-kavanaugh/?arc404=true">promoted the piece with a tweet</a> reading, “Having a penis thrust in your face at a drunken dorm party may seem like harmless fun. But when Brett Kavanaugh did it to her, Deborah Ramirez says, it confirmed that she didn’t belong at Yale in the first place.” The tweet was widely criticized, with <a href="https://twitter.com/rgay/status/1173019986119389189">many pointing out</a> that being the target of sexual misconduct did not, in fact, seem like harmless fun.</p>
<p id="TH4ZZe">The Times has <a href="https://twitter.com/NYTimesPR/status/1173327850004451329">issued an apology</a>, calling the tweet “clearly inappropriate and offensive.” But critics have also <a href="https://twitter.com/Sulliview/status/1173336031321559041">raised questions about other aspects</a> of the paper’s handling of the piece, with some asking why a new allegation against a sitting Supreme Court Justice was published in the paper’s opinion section and not as a news story. <a href="https://twitter.com/NYTimesPR/status/1173327322948218880">The Times has said</a> the story ran in Sunday Review because that section commonly runs book excerpts by Times reporters.</p>
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<p lang="en" dir="ltr">Also, a tweet that went out from the <a href="https://twitter.com/nytopinion?ref_src=twsrc%5Etfw">@NYTOpinion</a> account yesterday was clearly inappropriate and offensive. We apologize for it and are reviewing the decision-making with those involved.</p>— NYTimes Communications (@NYTimesPR) <a href="https://twitter.com/NYTimesPR/status/1173327850004451329?ref_src=twsrc%5Etfw">September 15, 2019</a>
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<p id="WzlEO9">The Times has also <a href="https://www.politico.com/story/2019/09/16/brett-kavanaugh-donald-trump-1497652">received criticism from President Trump</a> and commentators on the right after it added an editors’ note to the story clarifying that according to friends, the female classmate mentioned by Stier did not recall the encounter he described. This information was not in the version of the story first published by the Times. </p>
<p id="fogmm2">Trump used the editor’s note on Monday to <a href="https://twitter.com/realDonaldTrump/status/1173568871481171974">claim that the Times</a> was “walk[ing] back” their story, and that “this is all about the LameStream Media working with their partner, the Dems.”</p>
<p id="0yk1DN">However, as <a href="https://twitter.com/onesarahjones/status/1173599570145742849">New York magazine’s Sarah Jones notes</a>, the information about the female classmate is mentioned clearly in Pogrebin and Kelly’s book and the Times is not “walking back” its story but rather adding a detail that’s already present in the source material.</p>
<h3 id="D65hp9">New details about Kavanaugh have implications for the Court and 2020</h3>
<p id="HQyhtv">Controversy about the manner in which they were reported aside, the new details about the allegations against Kavanaugh could have big ramifications. Even before they came to light, Americans were <a href="https://www.vox.com/2019/9/15/20867090/brett-kavanaugh-allegations-impeach-impeachment-supreme-court">suspicious about Kavanaugh</a>: 57 percent thought he lied under oath and only a third believed he would be impartial on issues of sexual misconduct or issues Democrats support, according to a December 2018 poll by PerryUndem.</p>
<p id="Gndyoh">This term, the Court faces a variety of cases that could divide the country along party lines, as well as putting Kavanaugh and his history in the spotlight. For example, <a href="https://www.nytimes.com/2019/04/22/us/politics/supreme-court-gay-transgender-employees.html">the Court will hear three cases</a> centering on the question of whether federal civil rights law protects people from discrimination on the basis of sexual orientation or gender identity. The Court may also take a case regarding a <a href="https://www.vox.com/2019/2/7/18215941/louisiana-abortion-law-supreme-court-admitting-privileges">Louisiana law requiring abortion providers to have admitting privileges</a> at a local hospital — opponents of the law say it would turn Louisiana into an “abortion desert,” leaving only one clinic open in the state, as well as opening the door for other states to block access to the procedure through increasingly onerous clinic restrictions.</p>
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<img alt="Sit-in protesters against the nomination of Brett Kavanaugh to the Supreme Court in the Court atrium holding signs that read, “Vote no on Brett Kavanaugh,” and, “We believe all survivors.”" data-mask-text="false" src="https://cdn.vox-cdn.com/thumbor/nmBdIPpvfD4_n8P1Gp6VPbxih3o=/800x0/filters:no_upscale()/cdn.vox-cdn.com/uploads/chorus_asset/file/19205512/GettyImages_1045676130.jpg">
<cite>Drew Angerer/Getty Images</cite>
<figcaption>Protestors rally against Supreme Court nominee Judge Brett Kavanaugh on Capitol Hill, on October 4, 2018.</figcaption>
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<p id="MsQBqq">These cases would have gotten attention regardless of the latest news, but the new details about the Kavanaugh allegations are likely to increase scrutiny into Kavanaugh’s role in making decisions around sex and gender discrimination and reproductive rights. </p>
<p id="1h82yt">Before his confirmation, Kavanaugh was widely seen as a potential deciding vote to overturn <em>Roe v. Wade</em>, the 1973 decision that established Americans’ right to an abortion. But last term, the Court declined to take up <a href="https://www.vox.com/identities/2018/12/10/18134365/supreme-court-planned-parenthood-kavanaugh-thomas-abortion">some cases involving reproductive rights</a>, and some speculated that the justices were unwilling to enter a battle over abortion rights so soon after Kavanaugh’s contentious confirmation process. The justices may have thought that confirmation process would be solidly in the past by the time this year’s term opened, but the new reporting brings it right back to the fore. </p>
<p id="4vGP4K">It’s unclear what that will mean for the Court, or its willingness to take up controversial cases that could remind Americans of women’s allegations against Kavanaugh. One thing is clear, though: Kavanaugh was unpopular with voters even before the allegations, with just <a href="https://www.vox.com/policy-and-politics/2018/9/4/17799842/brett-kavanaugh-supreme-court-confirmation-hearing-polls">37 percent of Americans</a> supporting his confirmation before Ford came forward. And Americans know that, regardless of what happens with calls for Kavanaugh’s impeachment, the next president will likely get to make at least one Supreme Court appointment.</p>
<p id="eXHRME">Thanks to the Times’ reporting and the ongoing fallout from it, there’s a good chance that fact will be fresh in voters’ minds when they go to the polls in 2020.</p>
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<img alt="Three women at a protest against Brett Kavanaugh’s nomination to the Supreme Court hold a banner that reads, “No justice, no seat!”" data-mask-text="false" src="https://cdn.vox-cdn.com/thumbor/cupYymspcycD3NkZrzQhqz8BaXk=/800x0/filters:no_upscale()/cdn.vox-cdn.com/uploads/chorus_asset/file/19205534/GettyImages_1046971046.jpg">
<cite>Gabriele Holtermann-Gorden/Pacific Press via Getty Images</cite>
<figcaption>Hundreds of protesters gathered in Union Square to protest the confirmation of Brett Kavanaugh on October 6, 2018.</figcaption>
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https://www.vox.com/2019/9/16/20868338/brett-kavanaugh-new-york-times-impeachment-allegationsAnna North2019-09-15T11:51:33-04:002019-09-15T11:51:33-04:00Impeaching a Supreme Court justice, explained
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<figcaption>Supreme Court Justice Brett Kavanaugh waits in the Capitol Rotunda in December 2018. | Jabin Botsford-Pool/Getty Images</figcaption>
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<p>It works just like impeaching a president.</p> <p id="NUcUbA">Now that two New York Times reporters have <a href="https://www.nytimes.com/2019/09/14/sunday-review/brett-kavanaugh-deborah-ramirez">extensively corroborated a key sexual assault accusation</a> against Supreme Court Justice Brett Kavanaugh and surfaced another previously unreported accusation of sexual assault against him, a big question looms: Can a Supreme Court justice be <a href="https://www.vox.com/2019/11/5/20914280/impeachment-trump-explained">impeached</a>?</p>
<p id="Eocyai">The answer is yes.</p>
<p id="jbJDMa">Kavanaugh faces <a href="https://www.vox.com/2018/9/22/17886814/brett-kavanaugh-christine-blasey-ford-deborah-ramirez">three</a> <a href="https://www.vox.com/policy-and-politics/2018/9/24/17895740/new-yorker-jane-mayer-yale-university-emails-brett-kavanaugh-deborah-ramirez">named</a> <a href="https://www.vox.com/policy-and-politics/2018/9/26/17905908/julie-swetnick-michael-avenatti-twitter-brett-kavanaugh">accusations</a> of sexual assault and misconduct, all of which he has denied. The accusation of his Yale classmate Deborah Ramirez has gained new weight due to the Times’ reporting, as well as the paper’s new report of an eyewitness account of another alleged assault at Yale by Kavanaugh.</p>
<p id="XvIeqT">But even before the allegations surfaced in the midst of Kavanaugh’s 2018 confirmation process, former Deputy Assistant Attorney General Lisa Graves <a href="https://slate.com/news-and-politics/2018/09/judge-brett-kavanaugh-should-be-impeached-for-lying-during-his-confirmation-hearings.html">called for Kavanaugh’s impeachment</a> about an entirely different matter: She accused him of lying under oath about stolen memos the Bush White House and congressional allies used in early 2000s judicial confirmation fights. </p>
<p id="CDEXc4">While the Republican Senate is unlikely to vote for Kavanaugh’s removal, the Democratic-run House could nonetheless pursue charges related to both alleged sexual wrongdoing and lying about the memos.</p>
<p id="rIxx5B">Kavanaugh is not the only jurist facing such calls. Jill Abramson, the former executive editor of the New York Times, in February called for an impeachment inquiry against Justice Clarence Thomas for <a href="http://nymag.com/daily/intelligencer/2018/02/the-case-for-impeaching-clarence-thomas.html">lying about his sexual harassment of Anita Hill</a>. <a href="https://www.npr.org/2018/09/23/650956623/anita-hill-testimony-the-witness-not-called">Other women</a> have accused Thomas of sexual harassment as well; one of them, Angela Wright-Shannon, recently <a href="https://www.huffingtonpost.com/entry/opinion-wright-shannon-clarence-thomas_us_5a8b4b2ae4b0a1d0e12c3095">called for his impeachment</a>, too.</p>
<p id="j5U8Cl">Impeachment and removal of a federal judge, including a Supreme Court justice, requires meeting a high political bar. Just as with <a href="https://www.vox.com/policy-and-politics/2017/5/12/15615066/impeachment-trump-process-history">presidents</a>, a majority of the House must approve an indictment to impeach, and a two-thirds supermajority of the US Senate must convict for the judge or justice to lose their office.</p>
<p id="jUQsh7">There is considerable precedent for impeaching and removing lower-level federal judges. For Supreme Court justices, the number of precedents is much smaller: There is one case in which a Supreme Court justice was impeached but not removed, and no other examples.</p>
<p id="UMwrT3">Here is how the process works and what previous efforts have taught us about it.</p>
<h3 id="m7eust">How impeaching judges works</h3>
<p id="gSdY5O">As a <a href="https://fas.org/sgp/crs/misc/98-186.pdf">2010 report</a> by Elizabeth Bazan for the Congressional Research Service explains, Article II, Section 4 of the Constitution provides for the removal of “the President, Vice President, and all civil Officers of the United States … on Impeachment for and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”</p>
<p id="dSsZz6">The term “civil officers” is not defined in the Constitution, and Bazan notes that with one exception (US Sen. William Blount, one of the first two elected from Tennessee in 1796) every person impeached so far has been an executive or judicial branch official. The Senate ultimately decided that Blount was not a “civil officer” and acquitted him on that basis.</p>
<p id="Q3H4OM">By contrast, Bazan writes, “the precedents show that federal judges have been considered to fall within the sweep of the ‘Civil Officer’ language.” The House has, in the course of federal history, impeached 13 judges, and the Senate has convicted and removed eight. Of those convicted, seven were district judges. The other was Robert Archbald, who served on the United States Court of Appeals for the Third Circuit and the now-defunct United States Commerce Court until his 1913 removal.</p>
<p id="eBdAz4">The four acquitted included three district judges and Supreme Court Associate Justice Samuel Chase. Chase, a Federalist appointed by George Washington, was the only Supreme Court justice to be impeached, in a <a href="http://www.rutgerslawreview.com/wp-content/uploads/archive/vol62/Issue3/Perlin_vol62n3.pdf">highly politicized attempt by Thomas Jefferson’s Democratic-Republicans to take out a political enemy</a> (albeit an enemy who was himself highly partisan, and the charges against whom weren’t wholly baseless).</p>
<p id="hBIw5c">The 13th judge, Samuel Kent, of the District Court for the Southern District of Texas, resigned before he could be convicted.</p>
<p id="OFVHta">As Bazan notes, this is something of an undercount. She lists 23 other judges who have had “impeachment resolutions, inquiries, or investigations … that, for various reasons, did not result in articles of impeachment being voted by the House.”</p>
<h3 id="EaMvH0">What judges get impeached for</h3>
<p id="4wi5fg">Focusing on the five most recent cases in which judges were impeached, from 1986 to present, impeachment and removal typically comes in cases of clear, criminal wrongdoing. That makes sense given the incredibly high bar in the Senate required for removal; accusations perceived as partisan are unlikely to reach 67 votes.</p>
<p id="gYfSnk">Harry Claiborne was impeached and removed in 1986, two years after <a href="https://www.senate.gov/artandhistory/history/common/briefing/Impeachment_Claiborne.htm">receiving a two-year prison sentence</a> for falsifying income tax returns. Alcee Hastings, who has since become a representative from Florida, was removed in 1989 for receiving a $150,000 bribe to reduce prison sentences for members of the mob. He had been acquitted of this charge in normal criminal court, but a special committee of the 11th Circuit Court of Appeals concluded that <a href="https://www.senate.gov/artandhistory/history/common/briefing/Impeachment_Hastings.htm">Hastings had committed perjury and tampered with evidence</a> in the case to secure his acquittal.</p>
<p id="0i1vld">Walter Nixon was removed in 1989, three years after receiving a <a href="https://www.nytimes.com/1989/11/04/us/senate-convicts-us-judge-removing-him-from-bench.html">five-year prison sentence for perjury</a>. Both he and <a href="https://law.justia.com/cases/federal/district-courts/FSupp/802/490/1650372/">Hastings</a> challenged the procedures for their impeachments in Court, but in the case of <a href="https://www.oyez.org/cases/1992/91-740"><em>Nixon v. United States</em></a>, the Supreme Court concluded unanimously that it had no authority to review the impeachment process, as impeachment trials are the sole province of the Senate.</p>
<p id="LFrFIi">Before his impeachment in 2009, Samuel Kent pleaded guilty to obstruction of justice and sentenced to 33 months in prison for lying about <a href="https://www.texasmonthly.com/articles/perversion-of-justice/">his sexual abuse of female employees</a>. G. Thomas Porteous, alone among the recent impeachment cases, was not criminally convicted in federal court before his 2010 impeachment by the House and conviction by the Senate. </p>
<p id="Nl2pfb">After an FBI and federal grand jury investigation, the Department of Justice had declined to press charges for, among other reasons, <a href="http://www.cnn.com/2010/POLITICS/09/13/judge.impeachment/index.html">concerns about statutes of limitations</a>. He stood accused of accepting bribes from lawyers with business before him, and of failing to recuse himself from cases involving people who allegedly bribed him.</p>
<h3 id="NlyFDk">These are all very different from the Kavanaugh case</h3>
<p id="0SCA58">If one takes the five impeachment cases in recent decades as a model, Kavanaugh’s conduct (and Thomas’s) does not appear similar. While Kent’s case involved sexual misconduct, he had also already been criminally convicted, whereas Maryland prosecutors have not pursued charges against Kavanaugh in the case of <a href="https://www.vox.com/policy-and-politics/2018/9/27/17910214/christine-blasey-ford-senate-testimony-brett-kavanaugh-hearing">Christine Blasey Ford</a>. There is little indication that federal prosecutors believe he committed perjury in his statements about the judicial memos.</p>
<p id="aLwTGe">These five most recent cases involved judges whose wrongdoing was recognized by both political parties in Congress and who had few if any defenders in the Senate. Kavanaugh and Thomas both have enthusiastic supporters in the Senate, and it’s doubtful that enough Republicans would defect to make removal viable.</p>
<p id="JTlzcU">That said, there is no clear definition of a “high crime or misdemeanor.” </p>
<p id="T9d4Sg">“The precedents in this country, as they have developed, reflect the fact that conduct which may not constitute a crime, but which may still be serious misbehavior bringing disrepute upon the public office involved, may provide a sufficient ground for impeachment,” Bazan writes, citing the case of Judge John Pickering, who was convicted on charges including mishandling cases in his capacity as a judge. That’s not a criminal offense, but the House and Senate considered it sufficiently serious to justify impeachment.</p>
<p id="upUoZ2">“What constitutes an impeachable offense,” Bazan concludes, “is less than completely clear.” The best answer might be that an impeachable offense is whatever the House and Senate think it is.</p>
https://www.vox.com/2018/9/27/17910524/supreme-court-impeach-impeachment-brett-kavanaughDylan Matthews2018-10-25T14:03:24-04:002018-10-25T14:03:24-04:00A Senate Republican wants the DOJ to investigate claims Avenatti lied about Kavanaugh
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<figcaption>Michael Avenatti at a convention in Los Angeles in October. | Phillip Faraone/Getty Images for Politicon</figcaption>
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<p>Sen. Chuck Grassley asked the Justice Department to look into three separate charges related to impeding the Supreme Court confirmation process.</p> <p id="mKM2nJ">Brett Kavanaugh may be confirmed to the Supreme Court, but Judiciary Chair Chuck Grassley isn’t done with Michael Avenatti. </p>
<p id="hwcsMh">Grassley referred Avanatti and a woman he represented during the Kavanaugh confirmation hearings to the Justice Department on three separate criminal charges related to impeding the confirmation process. Grassley’s office insists the referral is simply for an investigation and is not intended as an allegation of a crime.</p>
<p id="5f8FPj">You may recall that after Christine Blasey Ford accused Kavanaugh of sexual assault, Avenatti — who’s risen to fame as the attorney representing Stormy Daniels — announced that he was representing a woman with similar claims against Kavanaugh. <a href="https://www.vox.com/policy-and-politics/2018/9/26/17905908/julie-swetnick-michael-avenatti-twitter-brett-kavanaugh">Avenatti went on to share a sworn affidavit from Julie Swetnick</a>, who said that Kavanaugh had targeted women in high school with drugs and alcohol, so they could be more susceptible to being gang raped. Kavanaugh has denied all the allegations against him.</p>
<p id="sxAUfK">Swetnick’s accusation was explosive, and it’s frequently been cited by Republicans — including Sen. Susan Collins (ME) — as a sign of how out of control the Kavanaugh confirmation became.</p>
<p id="0ZNumv">Now, Grassley wants to get the law involved — sending a clear message that raising the specter of sexual misconduct against a man can have disastrous consequences.</p>
<p id="u8oRA3">In a letter sent to Attorney General Jeff Sessions and FBI Director Christopher Wray on Thursday, Grassley referred both Swetnick and Avenatti to the Justice Department for a criminal investigation looking into whether they lied to Congress, obstructed a congressional committee investigation, and participated in a conspiracy to provide materially false statements to lawmakers. </p>
<p id="vaCrGM">“The obvious, subsequent contradictions along with the suspicious timing of the allegations necessitate a criminal investigation by the Justice Department,” reads a statement from Grassley’s office. Representatives for the DOJ and FBI did not immediately respond to a request for comment. </p>
<p id="125wN1">This referral is the latest effort by Republicans to question the credibility of allegations that were brought against Kavanaugh. Republicans have continued to try to toe a line of saying they believed Ford but also insisted that she was perhaps mistaken about the identity of her accuser. Ford, for her part, said she was “100 percent certain” her attacker was Kavanaugh. </p>
<p id="Qg7fy4">Sen. John Cornyn (TX), a top Republican, has previously expressed an interest in opening an ethics investigation into Sen. Dianne Feinstein (D-CA) for how she handled the initial letter she received from Ford detailing the allegations. </p>
<p id="jPM4C9">The investigation referred by Grassley is yet another example of how women who ask to be believed face towering consequences for doing so.</p>
<p id="MmWJcn">Read the full letter:</p>
<div id="jBdKhz"><div class="DC-embed DC-embed-document DV-container"> <div style="position:relative;padding-bottom:129.42857142857142%;height:0;overflow:hidden;max-width:100%;"> <iframe src="//www.documentcloud.org/documents/5020890-Grassley-DOJ-Referral-Michael-Avenatti-and-Julie.html?embed=true&responsive=false&sidebar=false" title="Grassley DOJ Referral: Michael Avenatti and Julie Swetnick (Hosted by DocumentCloud)" sandbox="allow-scripts allow-same-origin allow-popups allow-forms" frameborder="0" style="position:absolute;top:0;left:0;width:100%;height:100%;border:1px solid #aaa;border-bottom:0;box-sizing:border-box;"></iframe> </div> </div></div>
https://www.vox.com/2018/10/25/18023418/chuck-grassley-michael-avenattiLi Zhou2018-10-10T11:25:05-04:002018-10-10T11:25:05-04:00How to save the Supreme Court
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<img alt="Supreme Court building." src="https://cdn.vox-cdn.com/thumbor/toAGHcZ72MH_ab_7feVJKHJkaWQ=/300x0:5091x3593/1310x983/cdn.vox-cdn.com/uploads/chorus_image/image/61221657/supreme-court.0.0.jpg" />
<figcaption>The Supreme Court building. | Drew Angerer/Getty Images</figcaption>
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<p>The Supreme Court faces a legitimacy crisis. Here’s what we can do about it.</p> <p id="o4EHqC">With the <a href="https://www.vox.com/2018/10/6/17941524/kavanaugh-confirmation-takeaways">confirmation of Brett Kavanaugh</a> to the Supreme Court, Republicans have succeeded in a decades-long effort to capture total control of the judicial branch. While they will surely celebrate this victory, the real loser in this partisan battle is not the other side — it’s the Supreme Court. And without radical reforms to save its legitimacy, the Court may never recover from its transformation into a nakedly partisan institution.</p>
<p id="OQZTI4">After more than 200 years, the Supreme Court still plays a crucial role in our constitutional democracy. It offers a check on the political process, and it holds Americans to our deepest commitments by upholding society’s laws. Indeed, with the Court as the highest arbiter of legal disputes in our country, the public’s trust that it isn’t just playing out partisan politics is inextricable from public confidence in the rule of law itself.</p>
<p id="qSbp3r">The Court has never been completely disconnected from politics, but the past several decades represent a dangerous swing in a deeply partisan direction. The increased polarization in society, the development of alternative schools of legal interpretation that line up with political leanings, and increased interest-group attention to the Supreme Court nomination process have combined to create a system in which the Court has become a political football. </p>
<p id="gLRB38">The years-long process of tit-for-tat escalation by each side culminated in 2016, when Senate Majority Leader Mitch McConnell and his Republican colleagues blocked President Barack Obama’s nominee, <a href="https://www.vox.com/policy-and-politics/2018/6/28/17511084/senate-republicans-merrick-garland-supreme-court-anthony-kennedy">Judge Merrick Garland</a>, from even receiving a hearing solely because they wanted to hold open the seat for a potential Republican appointee — a gambit that paid off with the successful nomination of Neil Gorsuch.</p>
<p id="gULur6">But the crisis truly arrived this summer when Kavanaugh was nominated to replace Justice Anthony Kennedy — likely the last justice to <a href="https://www.vox.com/policy-and-politics/2018/6/25/17461318/anthony-kennedy-ideology-retirement-supreme-court">frequently vote contrary</a> to what his party affiliation might suggest in some high-profile cases. With his replacement by a more predictable ideological justice, the notion of the Court as an institution above the political fray seemed very much in jeopardy. </p>
<p id="fNQDLo">And the past few weeks made the situation even worse. Sexual assault allegations, toxic hearings, shocking statements, and shameless political maneuvers over the final days of the confirmation battle led to <a href="http://www.latimes.com/nation/la-pol-scotus-confirmation-votes-over-the-years-20181005-htmlstory.html">one of the closest votes ever</a> for a Supreme Court nominee. The debate over Kavanaugh sparked passionate conversations all across the country, took center stage in political campaigns from North Dakota to Maine and generated outrage among senators on both sides of the aisle.</p>
<p id="fPT4DD">Now President Trump’s two nominations guarantee a solidly conservative Court that we should expect to reliably decide cases — especially hot-button cases — along party lines. This will make it very difficult for many to see the Supreme Court as anything but a set of political actors making partisan judgments, to a degree that is without precedent in American history. </p>
<p id="mV61tc">A Court that lacks widespread, bipartisan confidence faces grave risks. One can imagine the firestorm that might result if, say, the Court struck down by a 5-4 margin along party lines a Democratic president’s signature legislative accomplishment. The political branches might feel pressure to ignore the Court’s judgment, which would provoke an unprecedented constitutional crisis. Even if that did not come to pass, it’s likely the confrontation between the branches would significantly weaken the Court.</p>
<p id="9Wyejr">Other possibilities seem even worse. Anticipating the possibility that the new conservative majority would block progressive reforms, Democrats are warming to the idea of court-packing. Even if justified, such moves will only provoke further partisan escalation that will leave the Court’s image, and the rule of law, badly damaged.</p>
<p id="PwRL9u">Can this coming crisis be averted? Can the Supreme Court be saved from this fate? We think so. But preserving the Court’s legitimacy as an institution above politics will require a complete reenvisioning of how the Court works and how the justices are chosen. To save what is good about the Court, we must radically change the Court.</p>
<h3 id="i7FQtr">The Supreme Court panel solution</h3>
<p id="yGjASj">Successful reform could take many shapes. To advance the discussion, we’ll propose two ideas here. The first is changing the Supreme Court from nine permanent justices to a rotating group of justices, similar to a panel on a court of appeals. Every judge on the federal court of appeals would also be appointed as an associate justice of the Supreme Court. The Supreme Court “panel” would be composed of nine justices, selected at random from the full pool of associate justices. Once selected, the justices would hear cases for only two weeks, before another set of judges would replace them. </p>
<p id="nK8jfs">This approach would effectively eliminate the high stakes of Supreme Court appointments, thereby taking the Court out of the electoral and political realm. It would also significantly decrease the ideological partisanship of each court decision. No single judge would be able to advance an ideological agenda over decades of service or develop a cult of personality among partisans. And it would be very difficult to be a judicial activist on any given case because the next panel — arriving as soon as two weeks later — might have a different composition and take a different tack.</p>
<p id="Cq6BJV">Cases would also be chosen behind a veil of ignorance. While serving their two weeks, the justices would consider petitions for Supreme Court review. But with such short terms of service, the justices could not pick cases with a partisan agenda in mind; another slate of justices would hear the cases they select. </p>
<p id="7FwLiY">Activist lawyers would also not be able to game the system, bringing legal arguments and cases based on predictions of which way the Court is likely to decide. In the run of cases, the Court’s decisions would likely be far more deferential to the democratic process and far more tightly linked to precedent. That would be especially true if the new system were combined with a rule requiring supermajority votes to strike down federal statutes on constitutional grounds.</p>
<h3 id="4ibFox">The balanced court solution</h3>
<p id="OaY9vp">We call our second approach the balanced court. On this proposal, the Supreme Court would have 15 justices. Ten justices — five Republican and five Democratic — would be chosen through a political process much like our current system, and thus would be expected to vote in line with their party affiliation. The key to the proposal is that these politically appointed justices would need to unanimously pick five additional justices, drawn from the courts of appeals, to sit with them for a year. To ensure that the justices come to consensus, the Court would need to agree on all five additional justices or else it would be deemed not to have a quorum, and thus unable to hear cases.</p>
<p id="7ECsvq">In theory, the system would create incentives for the politically appointed justices to select judges who were universally respected as good lawyers and honest brokers — not devoted partisans. The resulting Court would still have a number of justices whose votes in the most controversial cases would match their political affiliation. But it would also, we hope, include some judges whose votes might be more unpredictable. Under today’s highly politicized selection process, presidents are unlikely to select independent-minded moderates.</p>
<p id="EIp9LE">These reforms raise some practical and constitutional questions, to be sure. But they are better starting points than many others on the table. Some commentators, for example, have proposed that Supreme Court justices serve an 18-year term instead of a lifetime term. Each president would get two appointments, and appointments would be predictable, removing the pressure to stack the Court with younger and younger justices. While this is a well-intentioned proposal, it is unlikely to depoliticize the Court. If anything, it will make things worse. </p>
<p id="N9Kw2N">First, it guarantees that the Supreme Court will be a campaign issue in every single presidential election because each president would get to shape the Court with two nominees. During the appointment process, movement activists on both sides would still jockey to make sure only the purest ideologues would be appointed. And once on the bench, the justices themselves might actually become more political: A term-limited justice might see the Court as the perfect jumping-off point for a presidential run, decide cases in hopes of retiring into a lucrative lobbying gig, or play to the public to secure a future on Fox News or MSNBC.</p>
<p id="xh0XrN">Our proposals, by contrast, turn down the temperature of the Supreme Court nomination process and stand a chance of creating a Court that doesn’t always vote along party lines. To be sure, even under our proposals, there would still be politics related to the appointment of federal court of appeals judges. But our suggestions would guarantee more ideological, methodological, and experiential diversity from the Supreme Court. Combined with short terms of service, this diversity will make it harder for any willful judge to impose their agenda on the country.</p>
<p id="n6w68H">Whether or not policymakers adopt our proposals, it is imperative that they make some kind of reform. Doing nothing is not a viable option. The Court will be gravely damaged by inevitable clashes between the conservative majority and progressive politicians once Democrats regain power. But more aggressive, nakedly political reforms like court-packing, as attractive as they might seem in the short term, are unlikely to be stable. Saving the Court by transforming the Court is our best hope.</p>
<p id="BylPfL"><em>Daniel Epps is an associate professor of law at Washington University in St. Louis, the co-host of the Supreme Court podcast </em>First Mondays, and a former law clerk to Justice Anthony Kennedy.</p>
<p id="x14N45"><em>Ganesh Sitaraman is a professor of law at Vanderbilt University and the author of </em>The Crisis of the Middle-Class Constitution.</p>
<hr class="p-entry-hr" id="xRs51b">
<p id="FqV8uC"><a href="http://vox.com/the-big-idea"><strong>The Big Idea</strong></a> is Vox’s home for smart discussion of the most important issues and ideas in politics, science, and culture — typically by outside contributors. If you have an idea for a piece, pitch us at <a href="mailto:thebigidea@vox.com"><strong>thebigidea@vox.com</strong></a>.</p>
https://www.vox.com/the-big-idea/2018/9/6/17827786/kavanaugh-vote-supreme-court-packingDaniel EppsGanesh Sitaraman2018-10-09T10:40:01-04:002018-10-09T10:40:01-04:00Trump says Kavanaugh allegations were a “hoax”
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<img alt="President Donald Trump pats new Supreme Court Justice Brett Kavanaugh on the shoulder after a ceremonial swearing-in at the White House in October 2018." src="https://cdn.vox-cdn.com/thumbor/RPyx0SRBs1HCTdjm3qWWiUG0r7U=/563x0:5427x3648/1310x983/cdn.vox-cdn.com/uploads/chorus_image/image/61702585/1047759420.jpg.0.jpg" />
<figcaption>President Donald Trump pats new Supreme Court Justice Brett Kavanaugh on the shoulder after a ceremonial swearing-in at the White House in October 2018. | Chip Somodevilla/Getty Images</figcaption>
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<p>The president is going full conspiracy theorist on the resistance to new Supreme Court Justice Brett Kavanaugh.</p> <p id="53odeo">President <a href="https://www.vox.com/donald-trump">Donald Trump</a> is embracing the conspiracy theories around the opposition to <a href="https://www.vox.com/policy-and-politics/2018/10/8/17947614/kavanaugh-fbi-investigation">Brett Kavanaugh</a>’s Supreme Court nomination and the sexual assault allegations brought against him by Palo Alto University professor <a href="https://www.vox.com/2018/9/16/17867706/christine-blasey-ford-brett-kavanaugh-sexual-assault-allegations">Christine Blasey Ford</a>.</p>
<p id="bdz4SB">Kavanaugh was sworn in to the Supreme Court on Sunday and took part in another ceremonial swearing-in event at the White House on Monday after weeks of a <a href="https://www.vox.com/2018/10/6/17941524/kavanaugh-confirmation-takeaways">bruising battle</a> over his confirmation. Republicans, including Trump, have been taking a <a href="https://www.vox.com/policy-and-politics/2018/10/6/17946176/brett-kavanaugh-vote-trump-tweet-mitch-mcconnell">victory lap</a> over the judge’s confirmation since the Senate narrowly voted to approve his nomination on Saturday.</p>
<p id="7U3781">Trump — who famously <a href="https://www.axios.com/trump-white-house-never-apologizes-kelly-sadler-86ba91d7-678f-47c8-b903-82ed1f30fbc0.html">never says he’s sorry</a> — on Monday’s White House event <a href="https://www.cnn.com/2018/10/08/politics/brett-kavanaugh-swearing-in-donald-trump-white-house/index.html">apologized</a> to Kavanaugh “on behalf of our nation” for the “terrible pain and suffering” he was “forced to endure” in the nomination process. As for those who opposed Kavanaugh’s nomination, and Ford, who accused him of sexually assaulting her in the 1980s, the president has no such sympathies.</p>
<p id="3e9xI4">While speaking with reporters on the South Lawn of the White House during the day on Monday, Trump said that accusations against Kavanaugh were a Democratic “hoax.”</p>
<p id="2ohISg">He discussed buzz among some Democrats about potentially trying to impeach Kavanaugh if they take back power in Congress and characterized a just as “a man that did nothing wrong, a man that was caught up in a hoax that was set up by the Democrats, using the Democrats’ lawyers.”</p>
<p id="IckYA4">Ford alleges that while she was at a high school party Kavanaugh drunkenly pinned her down, tried to take her clothes off, and covered her mouth as she screamed while his friend, Mark Judge, looked on. Her discussion of the incident is mentioned in 2012 and 2013 therapy notes, long before Kavanaugh was nominated. Another woman, <a href="https://www.vox.com/2018/9/23/17894410/second-sexual-misconduct-brett-kavanaugh-deborah-ramirez">Deborah Ramirez</a>, alleges Kavanaugh exposed himself to her and thrust his genitals in her face while they were both drunk at a party at Yale. Kavanaugh has denied all of the allegations against him.</p>
<p id="NK5e7T">“The American public has seen this charade, has seen this dishonesty by the Democrats,” Trump said, pointing out that a week-long FBI investigation, which Democrats have <a href="https://www.huffingtonpost.com/entry/brett-kavanaugh-fbi-investigation-supreme-court-results-democrats_us_5bb5b475e4b01470d04e7d87">decried</a> as a mediocre effort by the bureau, found “nothing wrong” about Kavanaugh.</p>
<p id="CfErIf">At a rally in Mississippi last week, Trump <a href="https://www.vox.com/2018/10/2/17930636/trump-mississippi-rally-mock-christine-blasey-ford-kavanaugh">openly mocked Ford</a> over her Senate testimony and gaps in her memory.</p>
<h3 id="vhNH04">Trump’s also tweeting conspiracies about the Kavanaugh protesters</h3>
<p id="yg0E76">The president also appears to be embracing another conspiracy theory that those protesting against Kavanaugh are being paid. </p>
<p id="6D2ph9">Last week, ahead of the Kavanaugh vote, he tweeted about the two women who <a href="https://www.vox.com/policy-and-politics/2018/9/28/17913762/jeff-flake-kavanaugh-ford-sexual-assault-survivors">confronted</a> Sen. Jeff Flake (R-AZ) in an elevator and told him their experiences with sexual assault. “The very rude elevator screamers are paid professionals only looking to make Senators look bad,” he said, claiming that protesters were being paid by Hungarian-American billionaire George Soros. </p>
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<p lang="en" dir="ltr">The very rude elevator screamers are paid professionals only looking to make Senators look bad. Don’t fall for it! Also, look at all of the professionally made identical signs. Paid for by Soros and others. These are not signs made in the basement from love! <a href="https://twitter.com/hashtag/Troublemakers?src=hash&ref_src=twsrc%5Etfw">#Troublemakers</a></p>— Donald J. Trump (@realDonaldTrump) <a href="https://twitter.com/realDonaldTrump/status/1048196883464818688?ref_src=twsrc%5Etfw">October 5, 2018</a>
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<p id="4sd3Xg">As <a href="https://www.vox.com/policy-and-politics/2018/10/5/17940706/trump-soros-kavanaugh-twitter-vote">Vox’s Jane Coaston wrote</a>, a number of prominent conservatives have referenced Soros’s possible involvement in protests. For example, a National Review columnist accused Ramirez of receiving funding from Soros through a 2003 fellowship (it wound up being a different Deborah Ramirez). More broadly <a href="https://www.vox.com/2018/6/11/17405784/george-soros-not-a-nazi-trump">Soros is a common boogeyman figure for those on the right</a>. </p>
<p id="yxPK6d">On Tuesday morning, Trump tweeted a more bizarre conspiracy theory, claiming that the paid protesters he referenced earlier weren’t being paid. “Screamers in Congress, and outside, were far too obvious — less professional than anticipated by those paying (or not paying) the bills!”</p>
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<blockquote class="twitter-tweet">
<p lang="en" dir="ltr">The paid D.C. protesters are now ready to REALLY protest because they haven’t gotten their checks - in other words, they weren’t paid! Screamers in Congress, and outside, were far too obvious - less professional than anticipated by those paying (or not paying) the bills!</p>— Donald J. Trump (@realDonaldTrump) <a href="https://twitter.com/realDonaldTrump/status/1049638803177127936?ref_src=twsrc%5Etfw">October 9, 2018</a>
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<p id="K7QEo2"> Trump appears to have been reacting to a Fox News segment with the Tuesday tweet. <a href="https://www.mediaite.com/tv/fox-news-guests-sarcastic-joke-fuels-trump-conspiracy-that-anti-kavanaugh-protestors-were-paid/">Mediaite reported</a> that Asra Nomani, who wrote a <a href="https://www.wsj.com/articles/george-soross-march-on-washington-1538951025">Wall Street Journal op-ed</a> about the money behind the Kavanaugh protests, appeared on <em>Fox & Friends </em>on Tuesday. She claimed that “people have sent me lots of messages that they are waiting for their checks.” </p>
<p id="fix6DJ">It appears that’s how it made it to Trump’s Twitter feed.</p>
<div id="jV7R0o">
<blockquote class="twitter-tweet">
<p lang="en" dir="ltr">The president is watching Fox News again.<br><br>Left, Fox & Friends, 7:47 am<br><br>Asra Nomani: "People have sent me lots of messages that they are waiting for their checks."<br><br>Right, Trump, 8:32 am <a href="https://t.co/MUIwA6RYjt">pic.twitter.com/MUIwA6RYjt</a></p>— Matthew Gertz (@MattGertz) <a href="https://twitter.com/MattGertz/status/1049640332596523013?ref_src=twsrc%5Etfw">October 9, 2018</a>
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https://www.vox.com/policy-and-politics/2018/10/9/17955246/trump-apologizes-kavanaugh-hoax-paid-protestersEmily Stewart2018-10-06T16:01:42-04:002018-10-06T16:01:42-04:00Republicans don’t care what you think
<figure>
<img alt="Chairman of the Senate Judiciary Committee Chuck Grassley (R-IA) and Senator Majority Leader Mitch McConnell (R-KY) enter a press conference to speak about the supplemental FBI report and the approaching cloture vote concerning Judge Brett Kavanaugh’s nom" src="https://cdn.vox-cdn.com/thumbor/j_R_CKnq9iFSlJV9XeALTRFMEB0=/404x0:3896x2619/1310x983/cdn.vox-cdn.com/uploads/chorus_image/image/61675991/GettyImages_1045896794.0.jpg" />
<figcaption>Chair of the Senate Judiciary Committee Chuck Grassley (R-IA) and Senator Majority Leader Mitch McConnell enter a press conference to speak about the supplemental FBI report and the approaching cloture vote concerning Judge Brett Kavanaugh’s nomination on October 4, 2018. | Melina Mara/The Washington Post via Getty Images</figcaption>
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<p>Republicans lost the argument, but they ultimately had the votes.</p> <p id="p2QXT5">Forty-nine Senate Republicans and one Democrat just confirmed Brett Kavanaugh to the United State Supreme Court. No allegations, no protesters, no public opinion poll showing Brett Kavanaugh is <a href="https://www.vox.com/policy-and-politics/2018/9/4/17799842/brett-kavanaugh-supreme-court-confirmation-hearing-polls">the most unpopular person</a> to be elevated to the nation’s highest court in recent history was going to stop them. </p>
<p id="cZsUFp">To the senators who confirmed him, it did not matter that <a href="https://www.vox.com/policy-and-politics/2018/9/27/17910214/christine-blasey-ford-senate-testimony-brett-kavanaugh-hearing">Christine Blasey Ford</a> testified for four hours under oath and told the Senate Judiciary Committee that she was “100 percent” certain Brett Kavanaugh was the boy who pulled her into a room at a high school party 36 years ago and tried to force himself on her. It did not matter that Kavanaugh appeared to, at best, <a href="https://www.nytimes.com/2018/09/28/us/politics/brett-kavanaugh-fact-check.html">mislead senators</a> in his own testimony. It did not matter that, unlike Clarence Thomas who also faced allegations of sexual misconduct, the public thought <a href="https://www.npr.org/2018/10/03/654054108/poll-more-believe-ford-than-kavanaugh-a-cultural-shift-from-1991">Kavanaugh’s accuser was more credible</a> than he was.</p>
<p id="Dm6NiR"><a href="https://www.vox.com/policy-and-politics/2018/9/25/17901304/lisa-murkowski-kavanaugh-accusers-swing-vote">Sen. Lisa Murkowski (R-AK)</a> framed the Senate’s decision simply, days before the final vote: “It is about whether or not a woman who has been a victim at some point in her life is to be believed.”</p>
<p id="Jtyyyq">The Senate has answered definitively: We do not believe her, not really, and we don’t care that the public does.</p>
<figure class="e-image">
<img alt="Sen. Susan Collins (R-ME) speaks to reporters after a floor speech to announce that she will vote for the nomination of Supreme Court Judge Brett Kavanaugh on October 5, 2018." data-mask-text="false" src="https://cdn.vox-cdn.com/thumbor/_fm5_hRR95af8VeJkb9L3DjLrks=/800x0/filters:no_upscale()/cdn.vox-cdn.com/uploads/chorus_asset/file/13224125/GettyImages_1046193138.jpg">
<cite>Alex Wong/Getty Images</cite>
<figcaption>Sen. Susan Collins (R-ME) speaks to reporters after a floor speech to announce that she will vote for the nomination of Supreme Court Judge Brett Kavanaugh on October 5, 2018.</figcaption>
</figure>
<p id="Cf8iP6">This is the governing ideology of the Republican Party: We don’t care what anybody else thinks. We have the power. We have the will. We have the votes. We’ll do what we want. </p>
<p id="jbjNRc">In politics, there’s winning the argument, and there’s winning the vote. Republicans lost the argument, but they ultimately had the votes.</p>
<h3 id="TlOnUc">Republicans don’t care if their nominee is unpopular</h3>
<p id="vrDRa7">The American public believes Christine Blasey Ford more than they believe Brett Kavanaugh. An <a href="https://www.npr.org/2018/10/03/654054108/poll-more-believe-ford-than-kavanaugh-a-cultural-shift-from-1991">NPR/PBS NewsHour/Marist poll</a> found that 45 percent of Americans thought she was the one telling the truth at last week’s Senate hearing, while 33 percent thought Kavanaugh was. It was a notable shift from the Anita Hill-Clarence Thomas hearings, when 58 percent of Americans said they believed Thomas more and only 24 percent said Hill.</p>
<p id="tVs4eI">Thomas, in other words, was confirmed to the Supreme Court with overwhelming public support, compared to his accuser. Now Kavanaugh will also be confirmed — but in direct defiance of the public, which finds his accuser, Ford, more credible than him. (Kavanaugh repeatedly denied the allegations.)</p>
<p id="eDDyy6">We could litigate the merits of Ford’s allegations and Kavanaugh’s credibility until the end of days. Republicans tried to have it both ways, being careful to suggest she experienced something traumatic but speculating perhaps she was mistaken about who had done it to her. </p>
<figure class="e-image">
<img alt=" " data-mask-text="false" src="https://cdn.vox-cdn.com/thumbor/NxEe5BtFgUkxV1iNUfiL7MPrATI=/800x0/filters:no_upscale()/cdn.vox-cdn.com/uploads/chorus_asset/file/13224137/GettyImages_1041759264__1_.jpg">
<cite>Andrew Harnik-Pool/Getty Images</cite>
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<p id="fBFvFH">Her testimony, under sworn oath, said she was “100 percent” certain her attacker was Kavanaugh. Republicans also have no evidence to support their claims that Ford might have been assaulted some other time, in some other place, by some other person. </p>
<p id="m6QzSM">Yet they kept making them, ignoring any questions about <a href="https://www.vox.com/2018/9/26/17901076/brett-kavanaugh-drinking-high-school-sexual-assault-allegations">Kavanaugh’s own honesty</a> and clinging to <a href="https://www.vox.com/policy-and-politics/2018/9/28/17914134/kavanaugh-ford-vote-republicans-senate-innocence-reasonable-doubt">an ill-defined standard</a> of additional corroboration for an alleged assault that took place nearly 40 years ago. And Democratic Sen. <a href="https://www.vox.com/2018/10/5/17939302/brett-kavanaugh-vote-joe-manchin">Joe Manchin</a> took the same position.</p>
<p id="d8OgHm">But that was typical of the GOP’s argument. Whatever rhetorical contortions were necessary, whatever procedural formalities must be endured, whatever must be done to put Brett Kavanaugh on the Supreme Court would be done.</p>
<h3 id="gy88Ak">Republicans are fine pushing past the backlash. Look at health care.</h3>
<p id="3wOnS5">That is the normal way of doing business under two years of Republican rule and President Trump.</p>
<p id="cstZMT">It started with Obamacare repeal. If Democrats bent the rules when they passed the health care law in the first place, Republicans <a href="https://www.vox.com/health-care/2017/6/15/15807986/obamacare-lies-obstruction">abandoned the legislative process</a> altogether to try to repeal it. </p>
<p id="MVISbt">There was no regular order, no committee hearings to consider and draft and produce the legislation — until some Republican senators expressed discomfort with passing a rushed bill that was written behind closed doors. So the Senate held some show hearings, to make it look like the normal process was being followed. It was not unlike <a href="https://www.vox.com/policy-and-politics/2018/10/5/17940738/fbi-investigation-kavanaugh-thorough-limits">the heavily curtailed FBI investigation</a> that was permitted only after a few Republican senators expressed discomfort with Kavanaugh’s nomination because of the sexual assault allegations.</p>
<figure class="e-image">
<img alt="Activists rally against the GOP health care plan outside of the Metropolitan Republican Club in New York City, on July 5, 2017." data-mask-text="false" src="https://cdn.vox-cdn.com/thumbor/nomeWZ0Q7nihOOhWZRZs40P7Yn4=/800x0/filters:no_upscale()/cdn.vox-cdn.com/uploads/chorus_asset/file/13224185/GettyImages_809452062.jpg">
<cite>Drew Angerer/Getty Images</cite>
<figcaption>Activists rally against the GOP health care plan outside of the Metropolitan Republican Club in New York City on July 5, 2017.</figcaption>
</figure>
<p id="kYtrSD">Republicans twisted themselves in knots to argue they weren’t rolling back protections for preexisting conditions (though almost every expert said <a href="https://www.vox.com/policy-and-politics/2017/5/3/15531494/american-health-care-act-explained">they were</a>) or that they wouldn’t be making <a href="https://www.vox.com/policy-and-politics/2017/6/22/15854762/senate-health-bill-medicaid-cuts">deep budget cuts to Medicaid</a> (instead asserting they were “slowing the growth of the program’s spending”). They were so desperate to do something, anything, to deliver on a seven-year promise to repeal and replace the law that the Senate was ready to pass a bill that <em>Republicans themselves </em><a href="https://www.vox.com/policy-and-politics/2017/7/27/16053268/senate-obamacare-repeal-chaos">didn’t want to become law</a> just to keep the debate alive.</p>
<p id="jv8d6u">The polling was <a href="https://www.axios.com/the-most-unpopular-bill-in-three-decades-1513304026-945eeceb-4d54-4eef-abde-545f692c4596.html">unambiguous</a>: The Republican health care plan was the most unpopular major legislation in three decades. But the House passed a bill and the Senate came within one John McCain thumbs-down of passing its own.</p>
<p id="gYXqkN">Republicans lost the argument, and that time, they also didn’t have the votes. But just barely.</p>
<h3 id="ZIsaqU">The only thing certain in politics is that Republicans will cut taxes and confirm judges</h3>
<p id="qnGj1X">The other major thing on Republicans’ agenda when they took power was cutting the corporate tax rate. Unlike health care, Republicans care <em>a lot</em> about cutting taxes. Tax cuts are the most unifying policy within the Republican Party — and preserving a conservative-leaning judiciary isn’t far behind.</p>
<p id="sYB11a">“The Republican Party does three things: cut taxes, kill terrorists and confirm judges. When we do those things, we energize our base and are also appealing to independent voters,” Matt Gorman, a spokesperson for the National Republican Congressional Committee, <a href="https://www.mcclatchydc.com/news/politics-government/election/midterms/article219488090.html">told</a> Katie Glueck and Adam Wollner of McClatchy this week.</p>
<figure class="e-image">
<img alt="President Trump holds an event celebrating the Republican tax cut plan in the East Room of the White House on June 29, 2018." data-mask-text="false" src="https://cdn.vox-cdn.com/thumbor/J-ZoEHCyx3crxiwjKDxw6GU2sOM=/800x0/filters:no_upscale()/cdn.vox-cdn.com/uploads/chorus_asset/file/13224143/GettyImages_988415932.jpg">
<cite>Cheriss May/NurPhoto via Getty Images</cite>
<figcaption>President Trump holds an event celebrating the Republican tax cut plan in the East Room of the White House on June 29, 2018.</figcaption>
</figure>
<p id="JcfTbJ">But even though tax cuts tend to be popular, this tax cut package was not. In fact, the Republican tax bill actually grew <em>more</em> unpopular as Congress debated it, as the Wall Street Journal <a href="https://www.wsj.com/articles/republican-tax-bill-has-grown-more-unpopular-poll-shows-1513720886">reported</a> at the time — but they passed it anyway, with no dissenting GOP votes in the Senate. It only got worse with age and lost even more ground with the public by June, when just 34 percent of Americans <a href="https://www.vox.com/policy-and-politics/2018/6/22/17492468/republican-tax-cut-law-poll">said</a> they supported the tax law.</p>
<p id="Kmeecu">What the Republican Party cared about — and ultimately what got the votes — was <a href="https://www.vox.com/policy-and-politics/2017/11/7/16618038/house-republicans-tax-bill-donors-chris-collins">the donor class</a>, which was very pleased with the package.</p>
<h3 id="w1S7IW">Conservatives wanted Kavanaugh. They got him. And that’s all that mattered.</h3>
<p id="pPFy7J">Senate Republican leader <a href="https://www.vox.com/2018/10/3/17932352/mitch-mcconnell-kavanaugh-confirmation">Mitch McConnell</a> has made confirming judges his top priority, and he has been fixated for months on filling retired Justice Anthony Kennedy’s seat.</p>
<p id="wtGr9B">Ford’s allegations, as well as those of Deborah Ramirez and Julie Swetnick, put the Republican dream at serious risk. McConnell treated Ford’s allegation, more or less, as an inconvenience: Before she even testified, he <a href="https://www.usatoday.com/story/news/politics/2018/09/21/mitch-mcconnell-were-going-plow-right-through-ford-allegation/1380905002/">promised</a> the conservative base that Senate Republicans would “plow right through.” Ultimately, he took the risk of pushing through an unpopular nominee, and it paid off. He had the votes. </p>
<p id="ljrI5W">Through all the protests, it revealed that Republicans had a common enemy — those preening, devious Democrats — and that trumped any doubts about whether Kavanaugh might have assaulted Ford. In <a href="https://www.vox.com/2018/10/5/17941352/susan-collins-brett-kavanaugh">a Senate floor speech</a> justifying her vote for Kavanaugh, Sen. Susan Collins (R-ME) focused early and often on the nameless “special interests” that had been arrayed against Kavanaugh well before Ford’s story was known and implied that Ford herself had been exploited by the judge’s enemies.</p>
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<img alt="Senate Judiciary Committee member Senator Jeff Flake (R-AZ) speaks with colleagues on the nomination of Brett M. Kavanaugh on September 28, 2018." data-mask-text="false" src="https://cdn.vox-cdn.com/thumbor/lVBWpEb9vr9rJb8EtVwhamdrnwU=/800x0/filters:no_upscale()/cdn.vox-cdn.com/uploads/chorus_asset/file/13224155/GettyImages_1042542202.jpg">
<cite>Brendan Smialowski/AFP/Getty Images</cite>
<figcaption>Senate Judiciary Committee member Sen. Jeff Flake (R-AZ) speaks with colleagues on the nomination of Brett M. Kavanaugh on September 28, 2018.</figcaption>
</figure>
<p id="L5Ln4Q">That Kavanaugh was the most unpopular, most divisive Supreme Court nominee in a generation didn’t ever factor into it. The base was happy, and Republicans have <a href="https://www.vox.com/policy-and-politics/2018/10/4/17936810/2018-midterm-elections-brett-kavanaugh-senate-confirmation-polls">seen their odds</a> of holding the Senate rise. The conservative intelligentsia was happy, finally nearing the completion of their decades-long quest to make and keep the high court conservative. They were the ones who mattered.</p>
<p id="Of9o4e">Christine Blasey Ford knew this might happen when she came forward.</p>
<p id="zhNSkj">“I was … wondering whether I would just be jumping in front of a train that was headed to where it was headed anyway,” she told the Senate Judiciary Committee, “and that I would just be personally annihilated.”</p>
<p id="hN5CXB">She was right: The destination was already set. </p>
<div class="c-wide-block"> <figure class="e-image">
<img alt="A protester demonstrates for Republicans and against legalized abortion outside the US Capitol on October 5, 2018. " data-mask-text="false" src="https://cdn.vox-cdn.com/thumbor/nwC1bnbBLhDj7Oo-St3bRKbMLsw=/800x0/filters:no_upscale()/cdn.vox-cdn.com/uploads/chorus_asset/file/13224159/GettyImages_1046002340.jpg">
<cite>Jim Watson/AFP/Getty Images</cite>
<figcaption>A protester demonstrates for Republicans and against legalized abortion outside the US Capitol on October 5, 2018. </figcaption>
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https://www.vox.com/policy-and-politics/2018/10/6/17940956/brett-kavanaugh-supreme-court-senate-confirmation-republicans-yoloDylan Scott2018-10-05T15:53:27-04:002018-10-05T15:53:27-04:00Kavanaugh likely gives SCOTUS the votes to overturn Roe. Here’s how they’d do it.
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<img alt="Trump Announces His Nominee To Succeed Anthony Kennedy On U.S. Supreme Court" src="https://cdn.vox-cdn.com/thumbor/JPoq7TeWIBy3lVJ3bnvBeVuFMPU=/112x0:3000x2166/1310x983/cdn.vox-cdn.com/uploads/chorus_image/image/60322113/994989628.jpg.0.jpg" />
<figcaption>Mark Wilson/Getty Images</figcaption>
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<p>Get ready for the opinion to be gutted.</p> <p id="by3GeH">Now that Supreme Court justice Brett Kavanaugh <a href="https://www.vox.com/2018/10/5/17941352/susan-collins-brett-kavanaugh">has the votes to be confirmed by the US Senate</a>, there is likely a 5-4 majority on the Court to overturn <em>Roe v. Wade </em>(depending on how Chief Justice <a href="https://www.vox.com/policy-and-politics/2018/7/9/17541954/roe-v-wade-supreme-court-john-roberts">John Roberts</a> votes — more on him <a href="https://www.vox.com/policy-and-politics/2018/7/9/17541954/roe-v-wade-supreme-court-john-roberts">here</a> and below)<em>.</em></p>
<p id="Orc38y">Kavanaugh has, for the duration of his confirmation fight, pretended this isn’t the case. “As a general proposition, I understand the importance of the precedent set forth in <em>Roe v. Wade,”</em> he <a href="https://www.vox.com/2018/9/5/17822974/brett-kavanaugh-abortion-views-supreme-court-hearing">told senators during his confirmation hearing</a>. He reportedly <a href="https://www.vox.com/2018/8/31/17791858/brett-kavanaugh-judge-views-vote-abortion-roe">told Sen. Susan Collins (R-ME)</a> in private that he agrees with Chief Justice John Roberts, who called <em>Roe</em> settled law in his 2005 confirmation hearings. Both <a href="https://twitter.com/igorbobic/status/1044677159242137602">Collins</a>, who supports Kavanaugh, and Sen. <a href="https://twitter.com/mkraju/status/1047900217956286464">Lisa Murkowski</a> (R-AK), who opposes him, have said they think he won’t vote to overturn <em>Roe</em>.</p>
<p id="ASVneW">That’s silly.</p>
<p id="V8yTLQ">Kavanaugh’s statement that he “understands the importance of the precedent” is, as my colleague Anna North explains, <a href="https://www.vox.com/2018/9/5/17822974/brett-kavanaugh-abortion-views-supreme-court-hearing">utterly meaningless</a>. So too with his 2006 statement, during a confirmation hearing for the DC Circuit Court of Appeals, that he would <a href="https://www.c-span.org/video/?192420-1/brett-kavanaugh-testifies-dc-circuit-confirmation-hearing-2006">“follow <em>Roe v. Wade</em> faithfully and fully.”</a></p>
<p id="4oUJo8">As a circuit court judge, Kavanaugh was bound in almost every case to obey Supreme Court precedent faithfully. He could try to bend that precedent, for sure, or argue that certain precedents have been superseded by subsequent rulings (that’s what <a href="https://www.ca10.uscourts.gov/opinions/13/13-4178.pdf">four</a> <a href="http://sblog.s3.amazonaws.com/wp-content/uploads/2014/10/Idaho-Nevada-marriage-9th-CA-10-7-14.pdf">appellate</a> <a href="https://www.scribd.com/document/238675754/14-2386-212#download">courts</a> <a href="https://www.scribd.com/document/235295017/14-1167-234-Opinion">did</a> in 2014 when they overturned bans on same-sex marriage, despite the Supreme Court’s 1972 ruling in <a href="https://en.wikipedia.org/wiki/Baker_v._Nelson"><em>Baker v. Nelson</em></a> that marriage equality didn’t present a “substantial federal question”). But he has to follow <em>Roe</em> and <em>Casey </em>(the 1992 ruling reaffirming the “core holding” of <em>Roe</em>). That’s just what the rules say.</p>
<p id="U2s6US">The Supreme Court, by contrast, can overturn its own precedents. It’s usually hesitant to do so, but just this term it threw out three decades-old rulings: 1977’s <a href="https://www.vox.com/2018/6/14/17437832/janus-afscme-supreme-court-union-teacher-police-public-sector"><em>Abood v. Detroit Board of Education</em></a><em>, </em><a href="https://en.wikipedia.org/wiki/South_Dakota_v._Wayfair,_Inc.">1967’s <em>National Bellas Hess v. Illinois</em>, and 1992’s <em>Quill Corp. v. North Dakota</em></a>. There’s nothing stopping <em>Roe</em> and <em>Casey</em> (and, more recently, 2016’s <a href="https://www.vox.com/2016/6/27/11713644/whole-womans-health-supreme-court-choice"><em>Whole Woman’s Health v. Hellerstedt</em></a>) from joining them, and Kavanaugh’s statements about his role on the DC Circuit tell us absolutely nothing about how he’d vote as a Supreme Court justice.</p>
<p id="8uOSw7">And there are strong signals that Kavanaugh would personally vote to overturn <em>Roe</em>, or at least drastically weaken it. In a speech last year to the <a href="https://www.aei.org/wp-content/uploads/2017/08/from-the-bench.pdf">American Enterprise Institute</a>, Kavanaugh praised then-Associate Justice William Rehnquist’s dissent in <em>Roe</em> at length. I’m going to quote the whole passage, because it’s important:</p>
<blockquote>
<p id="tz9XX6">Rehnquist’s dissenting opinion did not suggest that the Constitution protected no rights other than those enumerated in the text of the Bill of Rights. But he stated that under the Court’s precedents, any such unenumerated right had to be rooted in the traditions in conscience of our people. Given the prevalence of abortion regulations both historically and at the time, Rehnquist said he could not reach such a conclusion about abortion. He explained that a law prohibiting an abortion, even where the mother’s life was in jeopardy, would violate the Constitution, but otherwise he stated the states had the power to legislate with regard to this matter.</p>
<p id="pkgWun">In later cases, Rehnquist reiterated his view that unenumerated rights could be recognized by the courts only if the asserted right was rooted in the nation’s history and tradition. The 1997 case of <em>Washington vs. Glucksberg</em> involved an asserted right to assisted suicide. For a five-to-four majority this time, Rehnquist wrote the opinion for the Court saying that the rights and liberties protected by the due process clause are those rights that are deeply rooted in the nation’s history and tradition. And he rejected the claim that assisted suicide qualified as such a fundamental right</p>
<p id="YpBluh">Of course, even a first-year law student could tell you that <em>Glucksberg</em>’s approach to unenumerated rights was not consistent with the approach of the abortion cases such as <em>Roe vs. Wade</em> in 1973, as well as the 1992 decision reaffirming <em>Roe</em>, known as <em>Planned Parenthood vs. Casey</em>.</p>
<p id="pUlCzi">What to make of that? In this context, it’s fair to say that Justice Rehnquist was not successful in convincing a majority of the justices in the context of abortion either on <em>Roe</em> itself or in the later cases such as <em>Casey</em>, in the latter case perhaps because of <em>stare decisis</em>. But he was successful in stemming the general tide of free willing judicial creation of unenumerated rights that were not rooted in the nation’s history and tradition. The <em>Glucksberg</em> case stands to this day as an important precedent, limiting the Court’s role in the realm of social policy and helping to ensure that the Court operates more as a court of law and less as an institution of social policy.</p>
</blockquote>
<p id="NIIF9J">Kavanaugh is being a bit coy here, but here are some things he clearly states:</p>
<ol>
<li id="YIdxTo">The court’s 1997 decision in <em>Washington v. Glucksberg</em> conflicts with <em>Roe</em> and <em>Casey</em>.</li>
<li id="eYF9st">
<em>Glucksberg </em>was correctly decided, and “help[s] to ensure that the Court operates more as a court of law and less as an institution of social policy.”</li>
</ol>
<p id="7j7nqf">To paraphrase Kavanaugh, even a first-year formal logic student could tell you what that implies Kavanaugh’s position on <em>Roe</em> and <em>Casey</em> is.</p>
<p id="BVroLU">After the talk, a questioner turns Kavanaugh’s subtext into glorious text:</p>
<blockquote><p id="h3ellh">Q: Judge Kavanaugh, thank you for coming today. My name is Chris Johnswick. I just had a question for you. You spoke about the chief justice’s role in both <em>Roe</em> and <em>Casey</em>. I wonder if you could elaborate as what would you say his biggest legacy is for us. You agreed with his dissent in those opinions.</p></blockquote>
<p id="8wKuel">Kavanaugh demurred, telling Johnswick (assuming the transcriber got Chris’s last name right) that, “I don’t know if I can improve upon just that bare description of what he did.” But he didn’t dispute the characterization of him as agreeing with Rehnquist’s dissents in <em>Roe</em> and <em>Casey</em>.</p>
<p id="3lLf58">There’s other evidence that Kavanaugh is anti-<em>Roe</em> and anti-<em>Casey</em> as well. In a <a href="http://www.cnn.com/TRANSCRIPTS/0006/29/bp.00.html">2000 interview on CNN</a>, after the Supreme Court struck down a <a href="https://en.wikipedia.org/wiki/Stenberg_v._Carhart">Nebraska law banning dilation-and-extraction abortions</a> (which opponents call “partial-birth” abortions), Kavanaugh commented, “I think the Court, eight years ago in Casey, thought it was calling an end to the national controversy over abortion. I think the court misperceived that the issue would stay front and center, and I think Justice Kennedy’s dissent yesterday indicates some deep unease by him about the course of the Court on this issue.” To liberal<strong> </strong><a href="https://twitter.com/TopherSpiro/status/1016500091014787074">Kavanaugh skeptics</a>, that suggests he thinks (or thought 18 years ago) that abortion is not a settled issue in constitutional law, and can and should be revisited.</p>
<p id="fcTBg6">Finally, Kavanaugh’s record in the case of <a href="https://www.cadc.uscourts.gov/internet/opinions.nsf/C81A5EDEADAE82F2852581C30068AF6E/%24file/17-5236-1701167.pdf"><em>Garza v. Hargan</em></a>, which concerned a 17-year-old unauthorized immigrant’s attempt to secure an abortion while in government custody has given abortion rights advocates (and some more extreme anti-abortion advocates) pause. Kavanaugh, alongside Reagan appointee Karen Henderson, issued a ruling that the Office of Refugee Resettlement, which handles the care of unaccompanied minors in federal custody, <a href="https://harvardlawreview.org/wp-content/uploads/2018/04/1812-1819_Online.pdf">did not have to let Jane Doe obtain an abortion</a>, assuming she could find a “sponsor” (typically a family member or other guardian) and that the delay to find a sponsor wouldn’t “unduly burden the minor’s right” to the procedure. Patricia Millet, the third member of the DC Circuit panel and an Obama appointee, <a href="https://www.acludc.org/sites/default/files/field_documents/garza_v_hargan_appeals_ct_millett_dissent_10-20-2017.pdf">dissented strenuously</a>.</p>
<p id="q1zygJ">The DC Circuit reheard the case en banc (that is, as a whole court, not just a panel) and <a href="https://www.cadc.uscourts.gov/internet/opinions.nsf/C81A5EDEADAE82F2852581C30068AF6E/%24file/17-5236-1701167.pdf">overturned the panel’s decision</a>, enabling the girl to have an abortion the next morning. Kavanaugh, this time, was the one to strenuously object, joined by Henderson and Thomas Griffith (a fellow Bush nominee):</p>
<blockquote>
<p id="omaMfK">The three-judge panel held that the U.S. Government, when holding a pregnant unlawful immigrant minor in custody, may seek to expeditiously transfer the minor to an immigration sponsor before the minor makes the decision to obtain an abortion. That ruling followed from the Supreme Court’s many precedents holding that the Government has permissible interests in favoring fetal life, protecting the best interests of a minor, and refraining from facilitating abortion. The Supreme Court has repeatedly held that the Government may further those interests so long as it does not impose an undue burden on a woman seeking an abortion.</p>
<p id="9542M9">Today’s majority decision, by contrast, “substantially” adopts the panel dissent and is ultimately based on a constitutional principle as novel as it is wrong: a new right for unlawful immigrant minors in U.S. Government detention to obtain immediate abortion on demand, thereby barring any Government efforts to expeditiously transfer the minors to their immigration sponsors before they make that momentous life decision. The majority’s decision represents a radical extension of the Supreme Court’s abortion jurisprudence. It is in line with dissents over the years by Justices Brennan, Marshall, and Blackmun, not with the many majority opinions of the Supreme Court that have repeatedly upheld reasonable regulations that do not impose an undue burden on the abortion right recognized by the Supreme Court in <em>Roe v. Wade</em>.</p>
</blockquote>
<p id="1k3Qt6">Put another way, they viewed the DC Circuit’s majority as unreasonably reading <em>Roe v. Wade</em> to protect the right to abortion as absolute, when the Supreme Court has allowed for “reasonable regulations that do not impose an undue burden.” Kavanaugh and his fellow conservatives argued that forcing Jane Doe to wait until she had a sponsor did not impose such an undue burden.</p>
<p id="y5SVsh">Of concern to social conservatives was Kavanaugh’s writing in the case that, “All parties to this case recognize <em>Roe v. Wade</em> and <em>Planned Parenthood v. Casey</em> as precedents we must follow. All parties have assumed for purposes of this case, moreover, that Jane Doe has a right under Supreme Court precedent to obtain an abortion in the United States.”</p>
<p id="tAPn7H">By contrast, Henderson, the Reagan appointee, wrote her own dissent from the en banc ruling, in which she insisted, in a header no less, “J.D. Has No Constitutional Right to An Abortion,” on the grounds that she has “no connection to the United States … and cannot avail herself of the constitutional rights afforded those legally within our borders.” Henderson condemned the ruling as part of a “pantheon of abortion-exceptionalism cases.”</p>
<p id="Zj0l5x">Kavanaugh did not join that dissent, provoking the ire of social conservatives like former Virginia Attorney General Ken Cuccinelli, who told <a href="https://www.politico.com/story/2018/07/06/trump-supreme-court-pick-kavanaugh-immigrant-abortion-teen-700856">Politico’s Josh Gerstein</a>, “[Kavanaugh’s] view there was just quite troubling … You wouldn’t be hearing about this really and it certainly would not be causing people to have concern if Kavanaugh joined Henderson’s opinion.”</p>
<p id="YC85Ux">That said, Cuccinelli’s anxiety reeks of overreading tea leaves, and more mainstream conservatives like National Review’s Ed Whelan have <a href="https://www.nationalreview.com/bench-memos/on-judge-kavanaugh-on-garza-v-hargan/">vigorously defended Kavanaugh on the case</a>.</p>
<h3 id="3dlfAP">How overturning Roe would work</h3>
<p id="WwIpKD">I’m quite confident that Kavanaugh is a vote to overturn <em>Roe </em>and <em>Casey.</em> </p>
<p id="iqz8ak">But he won’t be the median justice on the Court once confirmed. That will be John Roberts, and the big question now is whether his belief in stare decisis, the Supreme Court practice of generally obeying precedent unless they believe it contains a grievous error, will override his personal desire to blow up abortion jurisprudence.</p>
<p id="kqecgz">My colleague <a href="https://www.vox.com/policy-and-politics/2018/7/9/17541954/roe-v-wade-supreme-court-john-roberts">Dylan Scott</a> has a great piece diving into this question specifically. As Scott notes, Roberts, as deputy solicitor general in 1990, wrote a brief arguing that <em>Roe</em> was “wrongly decided and should be overruled.” But he quotes NYU law professor Melissa Murray as explaining that, “As chief justice, Roberts has evinced particular concerns about overruling settled precedents … [and] as chief justice, he has been especially concerned about preserving the Court’s legitimacy and public stature.” </p>
<p id="HbKBdN">His decision to uphold the Affordable Care Act is a prime example of this tendency. His gradual efforts to roll back the Voting Rights Act and public-sector unions, by contrast, are an example of his willingness to rock the boat to get a conservative outcome, as <a href="https://www.washingtonpost.com/news/posteverything/wp/2018/07/02/yes-conservatives-will-try-to-undo-roe-v-wade-the-only-question-is-how/?noredirect=on&utm_term=.ec7a5def6932">Irin Carmon details in the Washington Post</a>.</p>
<p id="PBMXi5">You can go back and forth on where Roberts will land seemingly forever. William Saletan at Slate has a piece <a href="https://slate.com/news-and-politics/2018/07/roe-v-wade-why-republicans-wont-repeal-it.html">making the case that <em>Roe</em> will survive</a>, while UC Irvine constitutional law professor Leah Litman <a href="https://takecareblog.com/blog/getting-to-no-on-roe">argues it’s done for</a>.</p>
<p id="ZPoCQv">But it’s worth asking in addition what overturning <em>Roe</em> will look like. There are two broad ways it could happen. The first is the overturn-without-overturning approach. The second is a full-on reversal.</p>
<p id="GzuXfr">Kavanaugh has, in the <em>Garza v. Hargan</em> case, already suggested what an overturn-without-overturning approach could look like. Not to be too hyperbolic, but he argued that literally keeping a girl in detention to keep her from getting an abortion was not an undue burden on her right to an abortion. That might seem implausible (it certainly did to the rest of the DC Circuit) but it offers a pathway to allowing other extreme restrictions on abortion rights.</p>
<p id="Pmnp0H">Mark Joseph Stern at Slate, a consistent pessimist about the Court’s willingness to keep liberal precedents like <em>Roe, </em>has <a href="https://slate.com/news-and-politics/2018/07/how-brett-kavanaugh-will-gut-roe-v-wade.html">outlined one path this could take</a>:</p>
<blockquote><p id="jAecmo">A conservative state will pass a draconian anti-abortion restriction—one that shutters all abortion clinics, perhaps, or outlaws abortion after a fetal “heartbeat” is detected. With Kavanaugh providing the decisive fifth vote, the court will rule that the state law does not pose an “undue burden” to abortion access; after all, the government has an interest in “favoring fetal life,” and women who truly want an abortion can go to another state. The majority may not admit what it is doing. But in practice, it will be overturning <em>Roe</em>.</p></blockquote>
<p id="zZcXLT">That’s a pretty extreme case; fetal heartbeats are often present at six weeks, and it’s beyond laughable to argue that allowing bans on abortion after six weeks don’t impose an undue burden on the right to abortion. Carmon, citing Yale Law’s Reva Siegel, a noted expert on abortion jurisprudence, offers a more gradual trajectory:</p>
<blockquote>
<p id="gWBkR8">In an interview, Reva Siegel, a constitutional law professor at Yale, sketched out a possible two-step scenario akin to Roberts’s rulings on the Voting Rights Act. He <a href="https://www.oyez.org/cases/2008/08-322">stopped short</a> of gutting a key provision in a 2009 case, but laid the groundwork. Four years later, Roberts had a precedent to cite in his majority opinion in <em>Shelby County v. Holder</em>, which struck at the heart of a long-standing federal law.</p>
<p id="iwDFKr">Politically, Siegel added, overturning <em>Roe</em> immediately could mobilize progressives for the 2020 election, which Roberts surely understands. Part of the problem is that <em>Roe v. Wade </em>is <a href="http://www.pewresearch.org/fact-tank/2017/01/03/about-seven-in-ten-americans-oppose-overturning-roe-v-wade/">overwhelmingly popular</a> — all the more reason to avoid saying the words “<em>Roe</em> is overruled.”</p>
<p id="z3qz7T">But a halfway step — say, announcing a new legal standard that would rubber-stamp any legal restrictions except a ban — could motivate conservatives to ensure that Trump gets a second term to finish the job. And “incremental” would still be plenty: Simply overturning the two-year-old <em>Whole Woman’s Health v. Hellerstedt</em>, for example, would eliminate access in swaths of the country and close the last abortion clinic in Mississippi.</p>
</blockquote>
<p id="2r4x8I">As <a href="https://takecareblog.com/blog/getting-to-no-on-roe">Litman writes</a>, this could take the form of weakening the standard of review for determining if a regulation is an “undue burden.” In <em>Whole Woman’s Health</em>, the Court ruled that “the ‘undue burden’ standard is more demanding than rational basis review, and requires a state to establish that a law actually furthers its stated purposes,” to quote Litman. </p>
<p id="M9hnRu">But in a future ruling, the Court could simply require that regulations have a rational basis, and not require the state to prove that they further their stated purposes. That would effectively weaken the right to abortion dramatically to the point of de facto overturning <em>Roe </em>and <em>Casey, </em>because, as Litman says, “when a court applies rational basis review, the law being challenged will almost always be upheld.”</p>
<p id="ykV0CG">What cases reach the Supreme Court will play a key role in determining what approach it takes. As Carmon notes, states have been adopting a wide array of abortion restrictions, from ones that clearly violate <em>Roe</em> and would set up an outright challenge to it, to ones that could be upheld without junking <em>Roe</em> and <em>Casey</em> entirely. </p>
<p id="QX4Ore">Mississippi recently <a href="https://www.cnn.com/2018/03/19/health/mississippi-abortion-ban-15-weeks/index.html">approved a 15-week abortion ban</a> (already <a href="https://rewire.news/article/2018/03/20/federal-court-already-blocked-mississippis-unconstitutional-15-week-abortion-ban/">blocked in federal court</a>); Kentucky passed a ban applying to <a href="https://www.washingtonexaminer.com/policy/healthcare/aclu-sues-kentucky-to-halt-11-week-abortion-ban">dilation-and-evacuation abortions after 11 weeks</a> and Ohio and South Carolina are <a href="https://www.politico.com/story/2018/04/15/abortion-trump-supreme-court-roe-wade-473601">weighing “total prohibitions.”</a> Just this past May, Iowa adopted a law <a href="https://www.vox.com/2018/3/22/17143454/trump-iowa-heartbeat-bill-abortion-ban-mississippi-roe-v-wade">banning abortions after fetal heartbeats</a>, which again, usually occur at six weeks of pregnancy.</p>
<p id="YDpIvM">And this all could happen quite rapidly. As <a href="https://www.vox.com/2018/9/7/17818458/brett-kavanaugh-supreme-court-nominee-abortion-confirmation">Vox’s Anna North</a> explains, there are already 13 abortion cases before federal circuit courts this year, which could reach the Supreme Court afterwards. Any one of them could be the effective or explicit end of <em>Roe</em>.</p>
<p id="FOwkBA">There’s disagreement within the anti-abortion movement about how best to proceed. Steve King, the <a href="https://www.vox.com/policy-and-politics/2018/6/13/17459908/steve-king-neo-nazi-tweet-retweet">Nazi-retweeting Congress member</a> from Iowa, has a bill, HR 490, banning post-heartbeat abortions, which he <a href="https://www.politico.com/story/2018/04/15/abortion-trump-supreme-court-roe-wade-473601">claims National Right to Life is blocking</a>. (National Right to Life claims it doesn’t oppose the bill but is focused on a 20-week ban instead.) </p>
<p id="kUVaon">The Susan B. Anthony List and Family Research Council, by contrast, support the King bill. The incrementalist 20-week approach has been quite successful, with <a href="https://rewire.news/legislative-tracker/law-topic/20-week-bans/">21 states adopting them</a>. (Of those, Arizona and Idaho’s bans have been blocked by courts.) Twenty-week bans apply about four weeks before Roe has historically allowed states to ban abortions, enabling a future Supreme Court ruling that effectively weakens <em>Roe</em>.</p>
<p id="me6yZR">But it’s possible that the incrementalist strategy will give way to a more expansive effort. The passage of heartbeat bans or total bans on abortion at the state level will almost certainly lead federal appeals courts to overturn them, and if the conservatives on the Supreme Court don’t want to fully overturn yet, they can simply decline to hear the case. </p>
<p id="jCgk22">A conservative circuit court of appeals panel could rogue and decide to disobey <em>Roe </em>and <em>Casey. (</em>This would most likely happen after the post-Kavanaugh Court allows some less dramatic regulations like a 20-week ban to go forward, after which the circuit judges could argue that <em>Roe </em>and <em>Casey</em> no longer apply in the wake of more recent Supreme Court jurisprudence.) And then the Supreme Court would likely be forced to take up the issue.</p>
<p id="jC19Rr">This is what happened in 2014 to 2015 with same-sex marriage: Circuit courts split on the issue, forcing the Supreme Court to resolve the disagreement.</p>
<p id="v0sNMJ">That eventuality would bring the possibility of overturning <em>Roe</em> entirely to the Court’s door, and it would have little choice but to hear the case. After that point, all bets are off.</p>
https://www.vox.com/policy-and-politics/2018/7/10/17551644/brett-kavanaugh-roe-wade-abortion-trumpDylan Matthews