Brennan: AFN move hurts Kavanaugh

By Tom Brennan |

Things were looking good for Supreme Court nominee Brett Kavanaugh for a while, but his goose could be cooked now.

Alaska Sen. Lisa Murkowski is considered a key vote (along with Sen. Susan Collins of Maine) when the U.S. Senate takes up the Kavanaugh nomination next week. Both Murkowski and Collins are Republicans.

The Republicans have a 51-49 majority in the Senate and the vote on Kavanaugh’s appointment is expected to fall pretty much along party lines, so if either Murkowski or Collins defect and vote against him, the Supreme Court nomination could be in jeopardy.

The two women senators are considered swing votes who could be strongly influenced by Kavanaugh’s worrisome positions on the Roe vs. Wade decision that established a woman’s right to an abortion. Some of Kavanaugh’s statements suggest that he considers the Roe vs. Wade issue to be settled law, but lately he has said he was just quoting somebody else, suggesting that the abortion issue might still be up in the air.

Under the original Supreme Court ruling in 1973 a woman would only be prohibited from terminating a pregnancy in the third trimester (last three months) of a normal nine-month fetus’ time in the womb. Then in 1992 a subsequent decision established a new limit on abortions once the fetus reached viability, which could be six months or a week or more less depending on the individual fetus. Though a seemingly simple change, the 1992 decision put new responsibilities on women and their caregivers.

Senator Murkowski was considered a likely vote for Kavanaugh since overturning the Roe vs. Wade decision would be a legal matter revolving around a woman’s right to privacy and politics was unlikely to be a deciding factor. Her vote would give Kavanaugh a big step up for confirmation, though there are several other members of the Senate whose votes could be up for grabs.

But this week the Alaska Federation of Natives came out strongly against Kavanaugh’s nomination based on the U.S. Circuit Court judge’s previous statement that the Indian Commerce Clause in the U.S. Constitution limits Congress’ power to regulate Indian tribes to trade matters only. That would greatly limit the ability of Native peoples to appeal to Congress for benefits under a long list of federal programs. AFN said Kavanaugh’s position on the issue was “erroneous.”

With many women already concerned about Kavanaugh’s vote on the abortion issue, the addition of Alaska’s powerful Native organization to Kavanaugh’s opposition would seem to be a dealbreaker for Lisa Murkowski’s support for the judge.

Then on Friday night Sen. Dan Sullivan announced that Kavanaugh had told him that the rights of Alaska Native peoples was settled law and guaranteed by the special relationship the federal government has with American tribes, including those in Alaska. That relationship does not extend to Hawaii’s Native groups for reasons that remain unclear.

Though Murkowski and Collins have been considered the most important swing votes, other members of the Senate have also voiced reservations about Kavanaugh. The list includes Democrat Jon Tester of Montana and Senate Minority Leader Chuck Schumer. The minority leader met with Kavanaugh in August and came away convinced that Kavanaugh would vote against Roe vs. Wade if it came up for reconsideration.

Collins has complained recently that her office has been bombarded with messages from abortion supporters, many of them hostile and unfriendly. The atmosphere surrounding the issue has become so heated that Senate Majority Whip John Cornyn, the second-ranking Republican in the chamber, said in a statement: “It’s time for Senator Schumer to make clear where he stands and disavow the mob rule of the radical Left.”

Alaska’s other U.S. senator, Dan Sullivan, has indicated he plans to vote in favor of Kavanaugh’s appointment to the Supreme Court.

The issue is still unresolved but intervention by the Alaska Federation of Natives is likely to play a major role in Murkowski’s final decision.

Stay tuned.

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