What Are Betting Odds of Kavanaugh’s Confirmation?

Superseding an evenly divided Senate is no easy task, but the task may be closer than one thinks. Judge Kavanaugh’s nomination to the Supreme Court has been met with controversy and protests from both sides of the aisle and even within his own party. The controversy centers on whether Kavanaugh will be able to convince the Senate and the American people that he is fit to serve on the highest court in the land. As the vote nears, we examine the betting odds of Judge Kavanaugh being confirmed to the Supreme Court.

Kavanaugh’s Previous Record

Before being nominated to the Supreme Court, Judge Kavanaugh worked for many years as a judge on the U.S. Court of Appeals for the District of Columbia Circuit. During that time, he authored hundreds of opinions and dissents as well as several books. Perhaps most importantly for his Supreme Court confirmation, Judge Kavanaugh wrote opinions in a number of high-profile cases regarding abortion, national security and police accountability. Some of those cases resulted in bipartisan legislation being passed by Congress. In a nutshell, Judge Kavanaugh has a clear record of advancing liberal causes while on the bench.

The Vote Is Still Up In The Air

With less than a day to go before the scheduled vote on the Kavanaugh nomination, the Senate is far from assured of reaching the 60-vote threshold needed for his confirmation. At the time of writing, neither the Democrats nor the Republicans have given any indication of whether they will provide the 60th vote needed for Kavanaugh’s confirmation. There exists a distinct possibility that this nomination could go down to the wire.

What Does This Mean For Stock Market Prices?

As the final votes are tallied and the fate of Judge Kavanaugh becomes clearer, stock market prices are likely to reflect the uncertainty and the looming possibility of a new Supreme Court Justice being appointed. In general, when a new Supreme Court Justice is confirmed and a new case is issued by that Court, stocks generally rise because there is more certainty regarding the outcome of those cases. When there is uncertainty regarding how a Supreme Court case will be decided, prices tend to take a bit of a hit. For example, shortly after Justice Ginsburg was nominated to the Supreme Court, stock market prices fell in anticipation of her impending retirement, since there was not yet a clear successor. Kavanaugh’s confirmation would likely have similar consequences, given the political and legal uncertainties surrounding his nomination.

Who Wants To Be The Next Supreme Court Justice?

Apart from Judge Kavanaugh’s stellar qualifications, his Supreme Court confirmation would also mark a change in the ideological makeup of the Court. For decades, the Court has been considered a Republican stronghold, with only a few nominal Democratic appointees. With Kavanaugh’s confirmation, there is a clear indication that Democrats believe they have a chance of making inroads in this area and shifting the balance of power on the Court.

According to a survey conducted by the Public Religion Research Institute (PRRI) in conjunction with the University of Michigan, slightly more than one in five Americans (22 percent) say religion is the most important thing in their lives. When given the choice of whether they want a more secular or more religious Supreme Court, 37 percent prefer a more religious court and 30 percent an equally divided, or secular, court.

These results indicate a sharp break with the past. In 1965, only five years after the Court’s landmark decision in Roe v. Wade, which legalized abortion nationwide, only 12 percent of Americans said religion was the most important thing in their lives. Since then, the proportion of the population that placed a high priority on religion has increased steadily, reaching a modern-day high of 38 percent in 2018. This data underscores the degree to which the public has shifted to the right since the time of Roe v. Wade, with an equally divided Court being a prime example.

What Is The Consequences Of An Unpredictable Supreme Court?

Since the time of Roe v. Wade, the Court has issued a total of 79 decisions that legalized abortion, allowed the government to prohibit speech it found to be offensive, banned corporations from contributing to political campaigns and endorsed same-sex marriage. Each of these decisions has had significant and enduring consequences.

There is simply no way to know how these decisions will be interpreted by other courts or by future administrations. The best one can do is attempt to use existing precedent and predict how the Court might rule on similar issues in the future. For example, if one assumes that the next case the Court deals with is similar to the last case it dealt with, then it is possible to make some educated guesses regarding their decision-making process and the future directions of the law.

How Accurate Are These Predictions?

While these educated guesses regarding the future of the law are interesting and may even be useful, they are not foolproof. In order to determine the accuracy of these predictions, one must look to recent history and see how courts have actually decided issues similar to those Judge Kavanaugh would be asked to decide as a Supreme Court Justice. This is an area where lawyers and legal scholars can play an important role. In Roe v. Wade, for example, lawyers for both sides argued that the decision should be made based on the status of the fetus at the time of the abortion, as opposed to the time the procedure was performed, which was considered ‘irrelevant.’ Despite the fact that the case was argued and decided on very specific and narrow grounds, the legal question at issue was highly relevant, as it involved determining the definition of ‘person’ under the law. As a result of this definition, the case set a precedent that was subsequently cited in many other decisions regarding abortion, including decisions by the Supreme Court itself.

More recent history is even more instructive. In 2014, the Supreme Court struck down a total of 14 statewide abortion restrictions, with the legal question at issue being whether or not the government can place an ‘undue burden’ on a woman’s right to choose. Although the Court’s decision was very narrow, the essential question of whether or not these restrictions constituted an ‘undue burden’ on a woman’s right to choose was one that lawyers and law professors have cited numerous times since, since the decision effectively legalized abortion in many states.

These examples are just a few of the many issues where a specific, well-defined legal question has arisen regarding a controversial subject matter and been cited repeatedly since Roe v. Wade. Despite the fact that these examples relate to highly charged issues such as abortion and national security, the definitions of these terms are often cited in cases dealing with issues such as copyright, free speech and same-sex marriage.

How Is Kavanaugh’s Confirmation Different?

Kavanaugh’s confirmation is not only controversial because he is being nominated to a Supreme Court position by a deeply unpopular president; it is also a historical anomaly. For the first time in over a decade, the Court will be composed of a majority of justices nominated by the opposite party, with Kavanaugh being nominated by Trump and approved by the Senate under the chairmanship of Senator Chuck Grassley (R-IA). This makes Kavanaugh’s confirmation all the more interesting and unpredictable. As much as we may not like the idea of a Trump-appointed Supreme Court Justice, the irony of the situation is not lost on anyone.

The Bottom Line

It is not yet clear whether or not Brett Kavanaugh will be confirmed to the U.S. Supreme Court. His nomination marks a sea change in the ideological makeup of the Court and raises many important questions. With so much at stake, especially considering the limited window for Congress to pass legislation on this issue, we look to you, the readers, to shine light on this dark time in our nation’s history and put an end to this travesty once and for all.