New Supreme Court Nomination

Justice Anthony Kennedy announced at the end of June that he will be retiring from the United States Supreme Court. This week, President Donald Trump announced that he has nominated Brett Kavanaugh, a United States Circuit Judge in the District of Columbia, to be Justice Kennedy’s replacement. Attorney Paul Cambria spoke to WBEN about the confirmation process for a new Supreme Court Justice and what cases the Court might be hearing in the next session. The full interview is available on the WBEN website.

Confirmation process

WBEN asked Mr. Cambria what the process might be for determining who to consider for a Supreme Court nomination. “I think what happens is the Congressmen, the Senators and Representatives, are the ones who make the recommendations and then it goes down the line,” Mr. Cambria explained. He went on to say that the President is then prepared to interview the candidates but that, because “he really wouldn’t be in a position to read decisions” to determine the candidate’s legal background, “he has to rely on lawyers, people in the law profession, to give him that information.”

When asked whether potential Justices are ever questioned about incidents that may not appear on background checks, Mr. Cambria responded that they are often asked that question and cited Justice Clarence Thomas’ confirmation hearings and the testimony against him by Anita Hill as an example.

Determining future rulings

Mr. Cambria was then asked if it is illegal for a President to ask a prospective Justice how they would rule in certain cases or if it is simply bad form to do so. Mr. Cambria responded that “a judge—if they really are a judge and are going to be a truthful and honest judge—they’re going to say, ‘You know what, I’ll have to see at the time when it comes up what the facts are, what legal precedents have been decided by that time.’”

“It doesn’t happen overnight,” Mr. Cambria went on. “They don’t appoint a Supreme Court Justice and then the next day they’re hearing the Roe v. Wade argument. That has to wind its way through the courts,” he explained.

“It isn’t like this judge is going to make the difference because there’s an election coming up and the Republicans may lose. Obviously there’s a greater chance that Roe v. Wade is overturned but, if the Democrats are in and in a position to get a judge on the Court, then it changes,” Mr. Cambria said.

WBEN then asked Mr. Cambria if there is any way to know what cases the Supreme Court is likely to hear when it comes back into session. Mr. Cambria responded that it is easy to find out what those cases are or could be because “everything that’s filed is public record, so every case that they’ve either decided to take or is in front of them that they’re being asked to take are publicly accessible.”

Mr. Cambria was then asked if he thinks that Roe v. Wade will be overturned if President Trump is able to select more Supreme Court Justices. “I think that if there’s a feeling out there that the President has nominated and finally there is a person on that Court that’s conservative, that somebody will raise that issue again and get it up in front of that Court. It’s guaranteed if he gets a very conservative Justice up there,” he answered. Mr. Cambria went on to say, however, that once a Justice is on the bench “you never know” how they will decide cases.

“Look at [Supreme Court Justice William] Brennan. Brennan was a staunch Catholic but he got up there and, of course, look where he voted on Roe v. Wade,” he explained. “[President Dwight] Eisenhower, at least reportedly, said it was the biggest mistake he made as President appointing Brennan, who turned out to be the most liberal ever of the Justices. You never know. They can change their mind,” Mr. Cambria went on. He explained that some people are unhappy with Chief Justice John Roberts for similar reasons, including his vote in 2012 to uphold Congress’ power to enact the Affordable Care Act.

Duties of the Supreme Court

WBEN asked Mr. Cambria to explain the duties of the Chief Justice of the Supreme Court and how they differ from those of an Associate Justice. “The Chief Justice is the one who assigns the cases for writing,” he explained. “That Justice decides who of the Associates are going to be the ones writing an opinion on a certain case.”

He was then asked to explain what the originalists on the Supreme Court believe. “The originalist is supposedly the Justice who interprets the Constitution as it was written,” Mr. Cambria said. “The contrary person is someone who modernizes the application of the Constitution. That’s actually the difference. [Justice Antonin] Scalia was an originalist and Roberts is not so much so and I think that that obviously has some people upset but, basically, that’s what it means. Interpret it as written,” he went on.

Next steps

Mr. Cambria then explained that the next steps in the confirmation process will be “cumbersome” because he expects “the opposition to try and block [the confirmation]” or to interview Kavanaugh “to the point where they can win enough votes to defeat the appointment. That’ll be the next step after this.”

About Paul J. Cambria, Jr.

The chair of Lipsitz Green Scime Cambria’s Criminal Defense Trials and Appeals Practice Area, Mr. Cambria advises clients on criminal trials, criminal appeals, constitutional and First Amendment law, zoning and land use, antitrust, and professional licensing defense. He divides his time between the firm’s offices in Buffalo and Los Angeles.