AUWCL Faculty Experts Respond to Brett Kavanaugh's Supreme Court Nomination

July 10, 2018

American University Washington College of Law faculty experts spoke to news media following the nomination of Brett Kavanaugh to the Supreme Court of the United States, reflecting on what Kavanaugh’s potential confirmation could mean for the future of the SCOTUS.

Professor Steve Wermiel interview on CTV News Channel

Professor Jennifer Daskal interview on MSNBC

Professor Ezra Rosser in The Hill, Beyond ‘smart’ — Kavanaugh’s credentials and the limits of intelligence

Professor Bill Snape in BuzzFeed News, Brett Kavanaugh Will Mean Challenging Times For Environmental Laws

Professor Steve Wermiel in USA Today, Pricey ad wars launched in fight over Brett Kavanaugh's nomination to Supreme Court

Professor Daniela Kraiem in The Hill, Conservatives, liberals both agree: Nominee a pivotal vote on abortion

Professor Bill Snape in Bloomberg News, Kavanaugh Could Usher In Even More Business-Friendly Era on Supreme Court

AUWCL Faculty Experts Reflect on Justice Kennedy's Retirement from SCOTUS

June 28, 2018

Upon U.S. Supreme Court Justice Anthony M. Kennedy’s announcement that he will retire at the end of July, American University Washington College of Law faculty reflected on Kennedy's role in various monumental cases and how his resignation may ultimately impact the SCOTUS.

Herman Schwartz
Professor Steve Wermiel.

“In his 30 years on the Court, Justice Kennedy has cast some of the most important and influential votes in recent Supreme Court history. He has written all significant gay rights decisions, has saved affirmative action in higher education, and has preserved women’s right to abortion.

His retirement gives conservatives the chance, with a new Justice, to achieve the ready, working 5-Justice majority they have been hoping for since Richard Nixon was elected president in 1968, but have never quite been able to accomplish.” - Professor Steve Wermiel. Wermiel recently spoke to the New York Times about what to expect following Justice Kennedy’s retirement.

Herman Schwartz
Professor Fernando Laguarda.

“Justice Kennedy played an immensely important role on the Supreme Court and finding someone with the same knowledge of its history, respect for its place in our democracy, and capacity to think outside partisan lines will be a tall order.” - Professor Fernando Laguarda, director of the Program on Law and Government

"The LGBTQ movement owes a great debt to Justice Kennedy. What an extraordinary legacy. The swing justice who swung our way to write soaring (even breathtaking) majority opinions in the four big landmarks: Romer. Lawrence. Windsor. Obergefell. From decriminalization of our very existence, to the recognition and protection by the state of the dignity and worth of our intimate unions. There were disappointments along the way (like his vote with the majority in Dale), but Kennedy is a gay rights champion that history will look upon with favor.

Herman Schwartz
Vice Dean Tony Varona.

The Senate Democrats and the Republicans themselves (including President Trump) have their work cut out for them. The timing of this announcement, a few months before the midterms, is interesting and challenging. Will any Trump nominee face Merrick Garland's fate  especially in light of the storm of controversy around President Trump, his election and his presidency? Possibly." - Vice Dean Tony Varona

Professor Juan Méndez.

"Justice Kennedy made a significant contribution to international law as it applies to U. S. constitutional issues in a period of clear hostility to it.  Kennedy wrote the opinion in Roper v. Simmons, that declared unconstitutional the death penalty applied to defendants who committed the crime while being children, an opinion that is largely based on the emergence of a customary international law rule prohibiting the death penalty for minors on the basis of extensive “State practice.”  He also joined the majority in Atkins v. Virginia, that similarly banned the death penalty for defendants with mental disabilities. 

Kennedy wrote the opinion in Boumedienne v. Bush, that stated that the writ of habeas corpus applies to all persons detained under the 'Global War on Terror.'  By joining the majority opinions in Hamdi v. Rumsfeld and Hamdan v. Rumsfeld, and filing a concurring opinion in Rasul v. Bush, Kennedy helped form the majorities of the Court that defeated the policies of the George W. Bush Administration in all four of the challenges to illegal detention." - Professor Juan E Méndez, commissioner of the International Commission of Jurists

Herman Schwartz
Professor Herman Schwartz.

"Justice Kennedy saved university affirmative action in the Texas Fisher cases, and made an impact in areas such as abortion (Casey and Whole Womens Health) and term limits.

I doubt that his successor, no matter who it may be, will be any better for civil and political rights...and probably much worse." - Professor Herman Schwartz

Herman Schwartz
Professor Daniela Kraiem.

"Justice Kennedy’s record on women’s rights is a decidedly mixed bag.  He often sided with corporate interests and employers in cases involving the rights of women workers and union members. One issue, though, tends to eclipse them all when it comes to considering his legacy for women: abortion. Kennedy famously joined Justice O’Connor’s plurality opinion in Planned Parenthood v. Casey in 1992, rather than joining his conservative colleagues who would have eliminated any right to an abortion.  His abortion-related decisions preserved the basic concept of a right to terminate a pregnancy.  At the same time, they accepted restrictions on that right so long as the restrictions did not create an “undue burden”—a concept that Kennedy himself often interpreted quite narrowly. 

Herman Schwartz
Professor Brenda Smith.

This mixed approach opened the door to onerous waiting periods, parental notification requirements, and bans on specific procedures that render it difficult for millions of women, especially younger, low-income and rural women, to access needed abortion care.  Kennedy may have been the last, thin, bulwark against the outright overturning of Roe v. Wade, with its constitutional guarantee that women have the right to control their own reproductive choices, but his approach also widened inequality among women and weakened the meaning of that guarantee." - Professor Daniela Kraiem, associate director of the Women and the Law Program

"Justice Kennedy’s acumen and instincts for practical yet just outcomes, that recognized both the intent and the ambition of the law, will be sorely missed on the Court." - Professor Brenda Smith

Herman Schwartz
Professor Amanda Leiter.

“Justice Kennedy also played an important role in the environmental arena. For example, he adopted a standard for determining what constitutes a ‘water of the U.S.’—the so-called ‘significant nexus text’—that now defines the reach of the Environmental Protection Agency’s enforcement authority under the Clean Water Act. Likewise, he sided with the liberal wing of the Court in various decisions recognizing the Court’s broad authority to review agency action that contributes to but does not itself cause the environmental harm of which the plaintiff complains. The Court and the country benefited from his judicious approach to the thorny and technical questions that often arise in environmental cases.” - Professor Amanda Leiter, former SCOTUS clerk

Professor Lise Earle Beske.
Professor Elizabeth Earle Beske.

“Some of the reaction I'm seeing out there exaggerates Kennedy's role as a swing justice. In my experience, he was a very consistent conservative vote on issues of race, affirmative action, guns, and crime. He is remembered as a ‘moderate’ primarily because of his pathbreaking decisions on gay rights. These rulings are on solid ground and unlikely to be overturned.” - Professor Elizabeth Earle Beske, legalrhetoric instructor, former clerk for Justice Sandra Day O'Connor

Professor Bill Snape
Professor Bill Snape.

“A threshold political question is whether a president under an active criminal legal inquiry with potentially treasonous offenses should be able to nominate a Supreme Court justice at all, and whether the United States Senate should delay consideration of any nominee until the Mueller investigation is finished.” - Professor Bill Snape, Assistant Dean and Practitioner-in-Residence