Federal Courts and Nominations

RELEASE: Supreme Court: Future of Basic American Rights and Freedoms Now Rests in Hands of a Few Key Senators

CAC President Elizabeth Wydra: “When the time to vote comes, no Senator will be able to say they did not know the stakes of this nomination. Every Senator will feel the full weight of their responsibility, not to President or political party, but to the text, history, and values of the United States Constitution.”

WASHINGTON—On news of President Trump’s Nomination of Judge Brett Kavanaugh to replace retiring Justice Anthony M. Kennedy on the U.S. Supreme Court, Constitutional Accountability Center President Elizabeth Wydra issued the following reaction:

On the 150th anniversary of the ratification of the Fourteenth Amendment—enshrining the values of equality and liberty into our Constitution’s text, after a bloody Civil War that defeated the forces of a violent and racist apartheid—President Trump has nominated Judge Kavanaugh to replace Justice Kennedy.

Let me be clear: No Senator should vote to confirm Judge Kavanaugh unless he pledges to uphold the whole Constitution’s text, history, and values—with the Fourteenth Amendment’s hard-won guarantee of equality, shining as a beacon, among our Constitution’s provisions.

Unfortunately, we are already concerned that Judge Kavanaughis insufficient to this historic, yet fundamental, requirement. Given the type of Justice President Trump has made clear he wants to put on the bench, he is likely to vote against abortion rights, contraception access, and LGBTQ rights, while voting in favor of a broad view of the Second Amendment. All of those positions align with the series of litmus tests that President Trump touted during the 2016 campaign. This is especially so with respect to Roe v. Wade—presumably why Judge Kavanaugh made President Trump’s short list in the first place.

Over and over again, President Trump promised his voters that he’d appoint pro-life judges to the Supreme Court. He called abortion a litmus test for his Supreme Court nominees. Trump said during a debate with Hillary Clinton that overturning Roe would happen “automatically” if he was able to nominate two or three justices to the Court.

Conservative naysayers are already out in force saying that Roe is safe. They conveniently ignore Trump’s boast at the nomination of then-Judge Neil Gorsuch. “I am a man of my word,” Trump said. “I will do as I say.” When it comes to Trump tending his far-right conservative base, women and men across America should believe him.

Make no mistake, overturning Roe would mean countless women across the country could no longer have access to safe abortion. If their states outlawed it, many couldn’t afford to travel long distances to states where it would still be permitted. Senators Collins and Murkowski say they favor abortion rights. The ability of women to determine the course of their own reproductive lives is a central component of the equality of citizenship between men and women enshrined in the Fourteenth and Nineteenth Amendments.

When it comes to replacing Justice Kennedy—whose fifth vote just two years ago was critical to vindicating the right to abortion access—every Senator who values the equality of women under our Constitution must accept nothing less than a Justice at least as committed to equality as Kennedy was.

Abortion is hardly the only right at risk. A Supreme Court that in the last Term gave the U.S. Chamber of Commerce nine wins out of 10 cases as part of a decade-long 70% win-streak; a Court that bars the courthouse doors to victims of discrimination and worker exploitation, while displaying open hostility to labor unions and environmental regulations; and a Court that voters fear treats corporations more favorably than regular individuals—that Court is a threat to anyone in America pursuing their vision of the American Dream.

If President Trump is able to build his own Supreme Court, with a new Justice willing to give approval to policies based on prejudiced or authoritarian impulses, sympathetic to Trump’s claims of being above the law—and the Senate is unwilling to stand up to this President and his litmus-tested nominee—then myriad rights and freedoms that all in America have come to take for granted will be at risk of being lost for decades.

We will be closely studying Judge Kavanaugh’s record in coming weeks. When the time to vote comes, no Senator will be able to say they did not know the stakes of this nomination. Every Senator will feel the full weight of their responsibility, not to President or political party, but to the text, history, and values of the United States Constitution.



“CAC’s Elizabeth Wydra on Fox & Friends and President Trump’s abortion litmus test,” Fox News Channel, compilation of Trump statements, July 2, 2018: https://www.youtube.com/watch?v=GVRkL1fRirw

“The Fourteenth Amendment Turns 150 Today: Will Trump’s New Nominee Follow Its Text and History?” David H. Gans, Take Care, July 9, 2018: https://takecareblog.com/blog/the-fourteenth-amendment-turns-150-today-will-trump-s-new-nominee-follow-its-text-and-history

“Gorsuch has shown no commitment to precedent. That should worry Collins about Roe.” Brianne Gorod, Bangor Daily News, July 9, 2018: https://bangordailynews.com/2018/07/08/opinion/contributors/gorsuch-has-shown-no-commitment-to-precedent-that-should-worry-collins-about-roe/

U.S. Chamber of Commerce Supreme Court record, OT 2017: https://www.theusconstitution.org/series/chamber-study/

CAC voter poll results on the courts and the Constitution, September 2017: https://www.theusconstitution.org/wp-content/uploads/2018/07/CAC-Mellman-Courts-Constitution-Poll-9-2017.pdf


Now in our tenth year, Constitutional Accountability Center is a think tank, public interest law firm, and action center dedicated to fulfilling the progressive promise of the Constitution’s text and history. Visit the new CAC website at www.theusconstitution.org.


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