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‘The confirmation of Brett Kavanaugh shows that the US Constitution is open to interpretation, allowing politics to influence the judicial system.’

Statement by Professor Kirk W. Junker of the UoC’s Faculty of Law on Brett Kavanaugh’s appointment to the Supreme Court

‘In the case of Brett Kavanaugh, President Trump has for the second time replaced a politically conservative Justice with another politically conservative Justice. Already in April 2017, Justice Scalia was replaced by Justice Gorsuch, and now (in October 2018), Justice Kennedy by Justice Kavanaugh. Thus, the case of Brett Kavanaugh is not remarkable in this sense.

What is remarkable is that on important issues – such as women’s right to abortion –  Kavanaugh’s predecessor tended to consider conservative and liberal positions in rulings. It seems unlikely that Justice Kavanaugh will continue this tradition. Liberal American observers therefore fear that with Kavanaugh, the rulings of the Supreme Court will be much more conservative for a long time to come.

For German observers, the debate surrounding Kavanaugh and his appointment to the Supreme Court seems strange at times. Unlike the parliamentary structure of Germany, the United States have a presidential system. The US Constitution provides for three branches, each independent of the other, to function together as the state. Thus, the federal judiciary is independent from both the federal executive and the federal legislature. However, the Constitution ensures that the independence of each branch is checked by the other two branches. Article 2 states that the President, “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint ... Judges of the Supreme Court ...” However, the eighteenth-century US Constitution contains only 7 Articles and 27 Amendments. Thus, in most areas of the law, it provides only minimal guidance and much room for interpretation.
The justices of the Supreme Court traditionally prided themselves as being relatively non-political and certainly not party-political. Furthermore, all branches of the state were aware of the importance of a judiciary that was independent of party politics, and the president and senate respected that independence in the customs and politics of choosing new justices.

Recently, the high degree of neutrality in the process of appointing justices has, however, radically changed. It is now blatantly in play, as witnessed by the US Senate’s refusal to act on the 2016 nomination of Merrick Garland for 293 days, a political strategy that delayed the process until a new president was elected. The political tactics of the Republicans ultimately led to the nomination of a new candidate by the newly elected president: Donald Trump.
In addition, as a matter of custom, the Senate had historically been required to confirm Supreme Court Justices by a two-thirds majority, which nearly guaranteed that Senators from more than one party were needed to support that Justice. In 2017, the Senate changed that customary rule to a simple majority. Needing only a simple majority, a US Senate with 51 Republicans and 49 Democrats has, in two years, confirmed two nominees by votes of 54 – 45 and 50 – 48. Neither candidate would have come close to approval before the 2017 threshold change.’

Media Enquiries:

Professor Kirk W. Junker
Chair of US American Law
+49 221 470-89220

Lukas Plenk
+49 221 470-89220

Press and Communications Team:
Corinna Kielwein
+49 221 470-1700