Tonight at 9 Eastern, Donald Trump will announce his nominee for Anthony Kennedy’s replacement on the Supreme Court – and most expert court-watchers say it will likely be one of three federal judges: Amy Coney Barrett, Brett Kavanaugh, and Raymond Kethledge.
All are solidly conservative, as they’ve been vetted by the right-wing Federalist Society, but there are degrees to their conservatism. Any one of these relatively young jurists, however, will turn the court rightward for decades to come, with implications for the rights of LGBT people and other minority groups, women, workers, and immigrants.
For one thing, in the near future the court may choose to hear a case involving whether Title VII of the Civil Rights Act of 1964, which bans sex discrimination, extends to discrimination based on sexual orientation. Federal appeals courts have split on the issue, and the Supreme Court “will review at least two petitions to review the issue when it meets in the fall to decide which cases it will hear next term,” CNBC notes.
“There’s definitely a lot at stake here,” James Esseks, director of the American Civil Liberties Union’s Lesbian Gay Bisexual Transgender & HIV Project, told the cable channel. “Are LGBT people protected from discrimination in a way that most other people in the country are, or are we not?”
And then there are of course the concerns about what a conservative-leaning court would do if it hears cases on marriage equality, faith-based justifications for discrimination, abortion rights, voting rights, and more. Here’s a look at the records of the three judges said to be finalists.
Barrett is the youngest of the three, at 46, and possibly the most socially conservative. A former Notre Dame University law professor, she has written a good deal about the importance of religious faith. That came up prominently during the Senate confirmation hearings last year on her nomination to the U.S. Court of Appeals for the Seventh Circuit. Some Democrats questioned if she could subordinate her Catholic faith to the law. As a law student in 1998, she had coauthored a paper that noted judges’ beliefs sometimes conflict with the law, and said Catholic judges might want to recuse themselves from, for instance, cases involving the death penalty, which the church opposes. But some interpreted the paper as calling for religious beliefs to override the law. Democratic Sen. Dianne Feinstein, for instance, wondered about Barrett’s opinion on Roe v. Wade. Barrett declined to speak specifically to that. She was confirmed nonetheless.
If Trump nominates Barrett to the Supreme Court, confirmation hearings are likely to be contentious again. That’s something that could work against her, along with her lack of experience on the bench, as the Seventh Circuit position is her first judicial appointment.
She doesn’t have much of a paper trail on LGBT rights, but she has said, “The Constitution does not expressly protect a right to privacy,” a statement that has implications for both abortion rights and LGBT rights. Her views are cause for concern, according to the Alliance for Justice, a progressive group that monitors judicial nominees. “It would be hard to overstate the degree to which Barrett’s academic work has been tailored to dismantle Roe v. Wade,” the group noted on its website when her nomination to the Seventh Circuit was pending. She also once gave a paid speech to the Alliance Defending Freedom, the anti-LGBT legal group that has defended businesses that have refused to serve same-sex couples, including Masterpiece Cakeshop, the subject of a recent Supreme Court case.
Kavanaugh, 53, a judge on the U.S. Court of Appeals for the D.C. Circuit, doesn’t appear to have much of a record on LGBT rights. But he “has a track record of siding with religious organizations over governments and other groups that challenge them, a particularly attractive trait to conservatives,” CBS News reports. He also supported exemptions from the Affordable Care Act for a religious group, “albeit not to the full extent possible,” according to the Empirical SCOTUS blog; this was in a case challenging the ACA’s mandate for insurance coverage of contraceptives. He recently dissented from a decision that allowed a minor who is an undocumented immigrant to obtain an abortion, and if he’s the nominee, that is certain to come up in his confirmation hearings.
On other issues, “he has written almost entirely in favor of big businesses, employers in employment disputes, and against defendants in criminal cases,” notes Empirical SCOTUS. On the D.C. Circuit, he has heard several cases involving federal regulator agencies, and has generally been against the expansion of regulations – a position favorable to business rather than employees or consumers. He has ruled in favor of gun rights, and as a White House aide in the George W. Bush administration, he supported the expansion of presidential power. He’s a former law clerk for Justice Kennedy, and he has extensive federal court experience, having served on the D.C. Circuit since 2006. Both of those factors could work in his favor. Something that could work against him, at least with Democrats, is that in the 1990s he assisted then-independent counsel Kenneth Starr in his investigation of President Clinton.
Kethledge, 51, has been a judge on the U.S. Court of Appeals for the Sixth Circuit for 10 years, but he hasn’t ruled in many controversial cases. “He did, however, side with the Ohio Republican Party in a 2008 case that could have potentially prevented as many as 200,000 registered voters from casting a ballot,” notes ThinkProgress. “A unanimous Supreme Court reversed the decision Kethledge joined just three days after it was handed down.” According to Bloomberg BNA, he also found in favor of a Tea Party group that claimed it received unfair treatment from the Internal Revenue Service; ruled that “a Wisconsin law requiring employers to extend paid disability leave benefits to new mothers was preempted by federal law”; and rejected the Equal Employment Opportunity Commission’s “claims that a company violated the 1964 Civil Rights Act by considering the credit histories of job applicants in its hiring process.” Conservative commentator Hugh Hewitt has called Kethledge “Gorsuch 2.0,” “in the mold of Antonin Scalia.”
He was a Sixth Circuit judge when the court ruled against marriage equality in 2014 – the decision that was ultimately appealed to the Supreme Court, resulting in equal marriage rights nationwide – but wasn’t part of the three-judge panel that made the decision. Usually federal appellate court decisions involve just three judges initially; if a party in the case then petitions for a hearing by the full court, it may be heard by all the judges.
Kethledge has joined some opinions that could be encouraging to marginalized groups. Back in 2012, he joined in a ruling that upheld the University of Toledo’s firing of an official who had written a commentary “critical of efforts to compare the civil rights and gay rights movements,” SCOTUSBlog reports. The official had claimed she was merely expressing personal views and not speaking for the university, but the Sixth Circuit found the school was within its rights. The same year, he ruled in favor of a public transit agency that was sued by an anti-Muslim group for rejecting its ads; the agency had a policy of rejecting any ad “that is political or that subjects any group to scorn.”
Check back tonight for coverage of the nominee.