In my myopic opinion, Justice Kennedy's 30 plus year tenure on SCOTUS was a mix of the good (liberalizing campaign finance laws, protecting gun owners rights, striking down affirmative action); the bad (liberalizing government recognized sodomy, protecting Roe v. Wade, broadening the use of the Equal Protection Clause (although that did help in Bush v. Gore); and the ugly (expanding legal rights to foreign terror suspects). He had quite the impact on a whole generation of legal opinion. However, I would say that Kennedy's tenure actually increased the power of the federal government through his broad use of the Equal Protection Clause and really dealt a blow to States rights. He definitely left his mark for generations to come.
Now that Justice Kennedy has announced his retirement and the nomination of Brett Kavanaugh, a judge on the well-known DC Circuit for the last 12 years, the firestorm of political debate has begun. To me, the idea that we're have such vitriol on both sides regarding appointments to our justice system is just a symptom of how political all elements of public policy are these days, whether its to create (legislative), enforce (executive) or interpret (judicial) the laws and public policy.
An example of this would be abortion. I know folks are spewing much rhetoric, even vituperation, regarding how confirming Kavanaugh would overturn Roe v. Wade and end legalized abortion. In fact, like in most political matters, that is not the case. The best interpretation of what would happen actually came from the President's interview right after he won the election.
If Roe is overturned, abortion becomes a great national debate that will be settled through the legislative process. Hopefully that would be set at the state level if that was the case. Below is a map of how the states would start to divide themselves initially if Roe vs. Wade was overturned.
But the road for Roe vs. Wade to be overturned is a long one. For one, there would have to be such a court case that SCOTUS would take up that directly challenges Roe v. Wade. It is unclear how Kavanaugh would vote on such a case. He, like the President's prior appointee, Justice Neil Gorsuch, has publicly said that they believe Roe is the "law of the land," indicating they believe in a form of stare decisis, a legal principle of being deferential to prior precedents. So Roe v. Wade fate would be an open question if a case actually came to SCOTUS. Additionally, most cases surrounding abortion are in regards to strong restrictions, such as bans on abortion after the first or second trimester of a pregnancy. Since SCOTUS would likely be ruling on laws that have basis in popular opinion since they were legislated into law in a certain state,I am of the mind that Roe vs. Wade would never be overturned formally. However, I would see that SCOTUS could be more lenient in allowing more locally legislated regulations on abortion to be executed as law.
While my knowledge of Kavanuagh's background is limited, I have following knowledge about him:
1) He's one that tries to build consensus by talking and debating colleagues from all sides. Whether they are fellow judges. law clerks, folks at Catholic Mass, etc.
2) He's ruled strongly in favor of the 2nd Amendment, dissenting on assault weapons bans and agreeing with Justice Scalia's opinion on the Heller case, which supports one's right to self-defense.
3) He's strongly ruled in favor of protecting the executive branch in terms of its national security powers and whether the President can face prosecution while in office.
4) He's strongly ruled against expansion of the administrative state, a quietly strong area of agreement for conservatives.
So the bruising road towards confirmation begins. But before we cast hypotheticals on how Kavanaugh would affect the balance of the court, can we look at his approach to the law first?
