This weekend, C-SPAN ran a series about Alaska that included an interview with the state’s senior Senator, Lisa Murkowski. Along with Sens. Susan Collins and Rand Paul, Sen. Murkowski is considered one of the Republican Senators who might vote against confirming Judge Brett Kavanaugh.
Murkowski has consistently voted to confirm judicial nominees, whether selected by a Democratic or Republican president. However, the concern (or hope, if you’re a Democrat) is that Murkowski might not vote to confirm Kavanaugh because his ascension to the Supreme Court in place of Justice Kennedy could put Roe v. Wade in jeopardy.
However, during her interview with C-SPAN (beginning at around the 22 minute mark), Murkowski said that her vote would not be based on a single issue. She added that, though she is concerned about women’s reproductive rights, there are “so many other issues” of importance. The one she identified was Second Amendment rights.
Accordingly, Murkowski stated that “trying to distill or identify one issue that will guide my decision is not how I operate.” Rather, she will consider Kavanaugh’s “holistic record.”
She will be looking at his “judicial temperate, character, intelligence, balance, and desire to follow the law” as opposed to “moving things in a fixed way” based on ideology. She will also want to know Kavanaugh’s views on judicial precedent.
I believe that, absent unexpected news about the judge’s past, Murkowski will rate Kavanaugh highly in these categories. I haven’t heard anyone question his temperament, character, or intelligence.
Moreover, Kavanaugh’s opinions display respect for precedent and the law, as well as a balanced, fair-minded approach. Indeed, these qualities have, in several cases, resulted in criticism from some conservatives.
These cases include Garza v. Hargan, involving the claim of a right for unlawful immigrant minors in U.S. government detention to obtain immediate abortion on demand; Priests for Life v. Department of Health and Human Services, involving a religious-liberty challenge to the Affordable Care Act’s contraceptive coverage mandate; and Seven-Sky v. Holder, a challenge to Obamacare’s individual mandate which Kavanaugh said the court should not decide because the mandate is a tax that has not yet been enforced.
This is not the place for an analysis of Judge Kavanaugh’s reasoning in these three cases. Many conservatives disagree with his Obamacare opinion and some say he should have gone further than he did in the other two cases. I’ve provided links to each of the cases so readers can decide for themselves.
My point here is that in each case, Kavanaugh provided the kind of careful, non-ideologically driven legal analysis that Sen. Murkowski is looking for.
The Senator may also be impressed by Kavanaugh’s forceful pro-Second Amendment dissent in Heller v. District of Columbia, a follow-on case to the Supreme Court’s famous decision. As I have noted, Murkowski cited the Second Amendment as an issue of major concern to Alaskans.
Kavanaugh is solid on the Second Amendment.
It may also be worth noting that Murkowski voted to confirm two Obama appointees — Justices Sotomayor and Kagan — both of whom clearly were never going to be favorably disposed to Second Amendment rights. It would be odd if she voted not to confirm Kavanaugh based on speculation that he might vote to overturn Roe v. Wade.
Absent some sort of bombshell revelation, I don’t think it will happen.