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Trump ready to make second Supreme Court pick in 15 months

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President Donald Trump will announce Monday his nominee to replace outgoing Supreme Court Justice Anthony Kennedy, his second appointment to the high court in 15 months. Photo by Pete Marovich/UPI | License Photo

By Daniel Uria, UPI

President Donald Trump is set to announce his nominee Monday to replace retired Supreme Court Justice Anthony M. Kennedy, likely adding another conservative to the land's highest bench.

[post_ads]Monday's will be Trump's second high court nomination in 15 months, after Associate Justice Neil Gorsuch was sworn in by Kennedy in April 2017. The previous three presidents -- Barack Obama, George W. Bush and Bill Clinton -- appointed just two in their entire eight-year presidencies. Trump's pick represents a potential shift in the court's balance, as Kennedy was often a swing vote who sometimes sided with a different political ideology.

Appointed by former President Ronald Reagan in 1988, Kennedy wrote the majority opinion on landmark cases like Obergefell vs. Hodges in 2015, legalizing marriage equality nationwide, and Citizens United vs. the Federal Election Commission five years earlier, which protects campaign spending by corporations under the First Amendment.

With the eventual appointment of a Trump nominee, activist groups are concerned about the potential impact on issues such as abortion rights, LGBT rights and affirmative action.

Upholding precedents

After Kennedy announced his retirement, multiple groups advocating on behalf of women, people of color and the LGBT community sounded an alarm for a new Trump appointee. A coalition of abortion rights groups, including the Planned Parenthood Action Fund, NARAL Pro-Choice America and the National Institute for Reproductive Health Action Fund, launched the #SaveSCOTUS campaign, urging Americans to show up at Senate district offices to demand senators protect Roe vs. Wade and other healthcare issues.

Sen. Dianne Feinstein, D-Calif., tweeted support for the campaign, stating Kennedy's replacement on the Supreme Court could "eviscerate women's freedoms for generations."

"Overturning Roe vs. Wade would take us back to the days of women being severely injured and dying because they can't get basic medical care. We've come too far to go back to those days," Feinstein wrote.

National LGBTQ Task Force Executive Director Rea Carey also voiced concern, noting the risk to Roe vs. Wade and LGBT rights that progressed under the Obama administration.

"We must not kid ourselves, we must fight back and demand the Senate not confirm anyone who would weaken the rights of LGBTQ people and women," Carey said.

The National Association for the Advancement of Colored People issued a call for concerned citizens to contact members of Congress, adding senators shouldn't consider a new nominee until after a new chamber is elected in November and seated in January.

"The new Senate should ensure that the nominee has a demonstrated commitment to equal justice and civil rights for all," the organization said. "The names identified on President Trump's shortlist do not meet those qualifications."

The NAACP also condemned a recent decision by the Justice Department to reverse Obama-era guidelines on affirmative action, which provided educational contexts in which institutions could permissibly consider race in admissions and clarified how to interpret Supreme Court decisions.

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George Washington University law Professor Paul Schiff Berman said despite concerns about Trump's pick, the addition of a new conservative Supreme Court Justice is unlikely to result in changes to existing laws on abortion or same-sex marriage.

The newest iteration of the Supreme Court may instead, he said, permit state laws allowing the scope of those precedents to be limited.

"The question is less about whether the new justice will overturn those precedents and it should be more about the ways in which as a practical matter, the scope of those precedents will be severely limited over time," Berman told UPI.

Berman said the Supreme Court could approve cases from lower courts to make it more difficult for women to choose abortions or for doctors to perform them, and could possibly decide diversity is not a permissible goal of an admissions policy for universities and other academic institutions.

In the case of LGBT rights, Berman said he could foresee high court rulings similar to Masterpiece Cakeshop vs. Colorado Civil Rights Commission, in which it ruled a Colorado baker was legally within his rights to refuse to cater for a same-sex couple on religious grounds.

"We're more likely to see cases like the Masterpiece Cake case, which allows individuals or groups to opt out of recognizing gay marriages or participating in their ceremonies," he said.

Berman added a newly conservative Supreme Court could also take an active role on national security issues like terrorism, the use of detention facilities like the Navy's Guantanamo Bay prison and immigration policies.

"We are likely to see a much, much stronger executive authority and the courts being much more deferential to the executive's power in that area," he said.

Also, a court with two Trump appointees could affect Special Counsel Robert Mueller's Russia investigation, which is examining whether the president's campaign colluded with Moscow to sway the 2016 election.

For example, the court could be inclined to defer to claims of executive power on whether the president can be subpoenaed or indicted, as well as whether he could pardon himself or his allies in the investigation.

Four finalists

Trump told reporters Sunday he'd narrowed his list of candidates to replace Kennedy to four -- all of whom he called "excellent" choices for the seat.

"I'm very close to making a decision," he said.

[post_ads]On that short list, according to reports, are Thomas Hardiman and Raymond Kethledge, who were also included in the list of candidates Trump considered before he was elected, and Brett Kavanaugh and Amy ­Coney Barrett, who were added to the list later.

Hardiman a judge of the 3rd U.S. Circuit Court of Appeals, was runner-up to Gorsuch in 2017. As a federal appeals court judge, Hardiman has become known as a staunch guns rights advocate, exhibiting a commitment to a more expansive view of the Second Amendment.

Hardiman hasn't ruled directly on abortion issues, but joined an opinion vacating the conviction of an anti-abortion protester who was arrested for refusing to move away from the sidewalk in front of the Liberty Bell Center in Philadelphia.

Kethledge, nominated to the 6th Circuit Court of Appeals by Bush in 2006, has regularly voted against inmates in death-penalty cases, and last year rejected a challenge by three condemned prisoners to Ohio's lethal-injection protocol.

He recused himself from a vote in 2012 on the constitutionality of a Michigan amendment prohibiting public universities from considering race in their admissions process. He also sided with the majority in a man's sexual harassment claim against a male co-worker, saying it would only be valid if he could provide "credible evidence that the harasser was homosexual."

Kavanaugh, on the bench of the Washington, D.C., Circuit Court of Appeals since 2006, has written multiple decisions seeking to reign in Obama-era Environmental Protection Agency regulations.

Kavanaugh was part of a three-judge panel that rejected a temporary restraining order allowing an immigrant teenage girl to get an abortion, delaying the procedure while the government sought a sponsor for the girl. He also dissented on a vote to uphold net neutrality regulations against a challenge brought by telecommunications and other Internet providers in 2017 and rejected two constitutional challenges to the Affordable Care Act.

Barrett, a judge on the 7th Circuit Court of Appeals, has an extensive background in academic writing. During her confirmation to the 7th Circuit, senators questioned whether her writing portfolio indicates she would be influenced by her Catholic faith, particularly on the question of abortion.

Barrett wrote a law review article titled "Catholic Judges in Capital Cases" describing the church's prohibitions on abortion and euthanasia as "absolute" because they "take away innocent life."

Barrett's court also granted a federal government petition to reconsider a ruling for a nationwide injunction against withholding law enforcement grants from so-called "sanctuary cities" -- an attempt by the Trump administration last year to get some of the nation's largest cities, like New York and Los Angeles, to comply with federal immigration orders.
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