Battlelines drawn: the fight over the next US Supreme Court justice

President Trump's previous appointee to the highest court Neil Gorsuch – confirmed by a Senate vote of 54 to 45 with three Democrats joining with all Republicans – has been a consistently conservative judge.

The Democrats are still furious with the Republicans for successfully delaying the confirmation hearings for President Obama's nominee Merrick Garland in 2016 claiming such an important appointment should wait until after the Presidential elections in November that year. Mind you, this fury only really emerged after Hillary Clinton lost the allegedly unlosable election.

Now, thinking (or, more accurately, hoping) that mid-term elections in November will restore a Democrat majority to the Senate, the Democrats are using the same argument to try and hold up Kavanaugh's confirmation hearing. Republicans argue that mid-term elections are entirely different to a Presidential election.

The nightmare scenario for the Democrats is that Kavanaugh's appointment would cement a 5-4 conservative majority on the Supreme Court. His nomination is to fill the vacancy left by the retirement of Justice Anthony Kennedy who was appointed by President Reagan after his first two nominees failed and he has been called the "swing judge" whose vote has sometimes been conservative and sometimes liberal.

Even more alarming for the Democrats is the fact that the two oldest justices are those appointed by President Clinton – Justice Ginsberg who is 85 and Justice Breyer who is 79. Justice Kennedy was 81 when he announced his retirement, so it is not inconceivable that President Trump could have at least two more opportunities to fill vacancies, especially if he wins a second term. Kavanaugh is only 53 which means he could serve for at least thirty years while President Trump's other appointee, Justice Neil Gorsuch is only 50.

Unlike Australia where all judicial officers must retire at 70, US Supreme Court justices can soldier on until they literally drop.

Accepting the nomination, Judge Kavanaugh said, "My judicial philosophy is straightforward. A judge must be independent and must interpret the law, not make the law. A judge must interpret statutes as written and a judge must interpret the constitution as written informed by history and precedent."

Judge Kavanaugh has been a judge of the US court of Appeals for the District of Columbia - effectively the US second most senior court - since being appointed by President George W Bush in 2003 although his confirmation was held up for three years until a deal was struck between Democrat and Republican Senators.

Ironically, he was a law clerk for the retiring Justice Kennedy and later worked for the Independent Counsel Ken Starr during the investigation into the Monica Lewinsky-Bill Clinton. He was an author of Starr's report which recommended impeachment of President Clinton – which may account for Hillary Clinton's visceral hatred of him – and he worked on the staff of President George W Bush.

Today, Senators from both sides politicise, delay, demonise, obscure, fabricate and discredit what was supposed to be a non-partisan process to ensure that the most qualified lawyers serve on the highest court.

It wasn't always like this.

When considering a vacancy, Republican President Herbert Hoover asked his Attorney-General to supply a list of ten names to fill the vacancy. The list contained nine Republicans and, at the bottom, one Democrat Judge Benjamin Cardozo. When Hoover saw the list he told his AG, "It's a great list but you have it upside down. Cardozo's name should be at the top because he is the most distinguished sitting judge in the US."

The AG responded that Cardozo was a Democrat and a Jew – shock horror! – and would not serve the interests of the president or his party. To his credit, Hoover had his way and Justice Cardozo served with distinction.