Brett Kavanaugh

Jack Gruber-USA TODAY

News On The Rocks Presents: The Politics Of Picking A Supreme Court Justice

July 13, 2018 - 11:10 am

NEW YORK (WCBS 880) -- WCBS 880’s Wayne Cabot and Patty Steele tackled the topic of President Trump’s Supreme Court nomination of Judge Brett Kavanaugh on this week’s episode of News on the Rocks.

To sort through the intricate conversation, Cabot and Steele brought on Professor David Greenberg of Rutgers University, who specializes in U.S. political history, the presidency, national politics and the Supreme Court.

Monday evening, in a prime-time address to the American people, President Trump announced his nomination of Judge Kavanaugh to the bench. Kavanaugh, the 53-year-old federal appeals court judge, was immediately met with opposition from Democrats on the left.

With this announcement taking over headlines across the nation, the News on the Rocks team and Professor Greenberg discussed the president’s nomination, the Supreme Court, and the current partisan nature of the U.S.

When asked his opinion on Kavanaugh’s nomination, Greenberg explained that from a partisan perspective, the judge should have been eliminated from the short list of possible candidates.

“I think Kavanaugh’s service on the Starr committee, on the Starr Report, going after Bill Clinton from 20 years ago, really should be disqualifying,” Greenberg said. “And the problem is not so much his conservatism, it’s the partisan nature of his résumé. Fighting on the Bush v. Gore, the Bush legal team, the Starr Report, there’s a sense of a kind of partisan zealotry that’s not really about the principles; it’s about the power struggle.”

With Kavanaugh’s nomination, Democrats have been reminiscing on Judge Merrick Garland’s nomination in 2016, and the Republican's use of the “McConnell Rule,” refusing to confirm a judge to the bench until the mid-term elections. With this, Cabot asked Greenberg if there should be a non-partisan method for picking justices. He answered:

“I think the problem is not so much with the method we have now as the way our politics have become so polarized. So it’s really the political culture more than the rules of the game that are the problem in my view. Now how you change the culture is a very diffuse kind of question,” Greenberg said.

When discussing the model used to appoint justices to the Supreme Court, Greenberg again touched on the partisan nature of Washington, and how this strict divide became apparent not too long ago.

“So we shouldn’t assume this model is permanent, it’s just very hard in the present moment to see what would prompt a change,” Greenberg said. “But sooner or later this rigid polarized partisanship that we’re in, that we’ve been in since around Bush v. Gore, you know that 2000 election, I kind of think, maybe the Clinton impeachment, was really the start of a really hardcore polarization. Eventually this will give way to something else; you just can’t see what that is when you’re not in it.”

A highly-debated topic looming during this appointment period? The future of Roe v. Wade, the Supreme Court case that ruled on a woman’s ability to have an abortion. Democrats are concerned that with a conservative bench, this case may be overturned. Greenberg assured that while he does not believe the court will completely flip on the decision, it may set smaller regulations making women’s access to abortions increasingly difficult, but not downright illegal.

“I think the more likely scenario is a kind of hollowing out, where with five strong conservatives on the court, states pass increasingly restrictive abortion laws and then test them so that it becomes harder and harder for women to get abortions,” Greenberg said.  “Maybe it’s a waiting period, maybe it’s financial, maybe it’s parental consent. You start adding up different ways so it becomes maybe not impossible, but very difficult.”

And finally, the million dollar question: will Kavanaugh be confirmed, or do the Democrats have the ability to stop him? Greenberg has a prediction:

“I think he almost certainly will be approved. The thing that could derail him is if there really is something, like a skeleton in the closet,” Greenberg said. “The Democrats don’t have much leverage because they simply don’t have power in the Senate. Their best play is going to be to say ‘look, you just nominated someone who has written I think it’s like 300 opinions on the Appellate Court, and we need time to review that,” possibly extending the appointment period to October.

And, to top off the podcast, Cabot and Steele asked Greenberg “who’s the best justice and who’s the biggest dud?” Listen to the full podcast to hear the professor’s answer, and learn more about Kavanaugh’s nomination, and the current nature of U.S. politics, at