At the Moment, Kavanaugh is Probably Best Confirmable Judge for the Supreme Court

By John Zmirak Published on July 10, 2018

Tonight, President Trump announced his Supreme Court nominee. I was a little disappointed. Not by the choice, but by the lack of Trumpian theater. I’d hoped that Trump, as former owner of the Miss Universe Pageant, would have gone for a little more drama. You know, had all the leading contestants present, waiting in suspense. Then he’d announce the Second and the First Runner-Ups, giving each of them a crown. Let them cry and hug it out as he congratulated the winner with a tiara and a big bouquet.

Oh well, maybe next time.

A Double Yalie

Brett Kavanaugh, the president’s choice, has more than ample professional qualifications. As the Daily Caller reported:

A double Yalie with some two decades experience as a government lawyer and appeals judge, Kavanaugh is an archetypal Supreme Court nominee. He was notes editor of the Yale Law Review, clerked for Justice Anthony Kennedy, and practiced at an elite firm before entering the George W. Bush administration. …

Since joining the appeals court, he has developed a reputation as a text-focused judge who cares deeply about the separation of powers. Some of his best known opinions on the court have involved constitutional challenges to the structure of administrative agencies.

That kind of stellar record in the legal establishment used to be enough. That was before the Democrats decided to out themselves and admit the truth. They expect the Supreme Court to be a sitting, leftist Constitutional convention. It’s there not to read legislation, but to overturn laws they dislike. And to pluck key issues out of voters’ grubby, “deplorable” hands.

There are things about Kavanaugh that worry me, and others more reassuring.

Judges Who Want to Play God

The key to what conservatives should be looking for on the court is right there in the Daily Caller’s report. The “text” of the law, in the words that were used to write it, and the con-text when the law was passed. Not the “penumbras” and possible implications, which amount in the end to loopholes for judges who want to play God. If someone argues that a clause of the Constitution implies outcomes that would have appalled the Founders who wrote the document (or the voters who approved an Amendment) then he is wrong. Abortion and same-sex “marriage” are obvious examples.

But those are now terrible precedents. It will take a prolonged fight (and probably two or three more SCOTUS appointments) to be sure of overturning them. Let’s look ahead, instead.

So far, the Democrats haven’t tried to make homosexuals, transsexuals, furries or polygamists a “protected class” under federal anti-discrimination law. They don’t have the votes. Instead, President Obama told the Justice Department to pretend that such a law already existed. Which one? Why the Federal Civil Rights Act of 1964 — which was passed when sodomy laws still existed in 49 states. That’s a clear example where the context anchors the meaning of the text. A textualist like Kavanaugh, we can be sure, wouldn’t rape the Civil Rights Act by ignoring the fact that its text and context both clearly said “No.” That might be a good definition of an “originalist” or textualist judge. He applies the “Me Too” movement’s insights to our Constitution, too.

We Need a Redder Senate

As a textualist, Kavanaugh almost certainly holds both Roe v. Wade and Planned Parenthood v. Casey in deep contempt. Legal expert Andrew McCarthy explains the Constitutional reasons for that better than I could. Kavanaugh has wisely nowhere committed himself to overturning either of these embarrassing pieces of amateur jurisprudence. If he had, he might be impossible to squeeze through the Senate. No, I’m not happy about that either. Time to elect more Republican senators, people! Let’s flip enough seats until Trump could appoint Steve Bannon if he wanted to. Or Don, Jr.

Kavanaugh has wisely nowhere committed himself to overturning amateur jurisprudence like Roe v. Wade. If he had, he might be impossible to squeeze through the Senate. No, I’m not happy about that either.

In the meantime, however, we face a very narrow margin in the Senate. Trump surely took this into account. Who knows? Maybe Anthony Kennedy did as well, deciding to retire before the Senate turned even redder.

Pros and Cons

There are things about Kavanaugh that worry me, and others more reassuring. A recent column at The Federalist warned that the judge has been less solicitous of religious liberty than he might be. That isn’t good. But then again, one of the worst opinions for religious liberty in recent years came from Antonin Scalia. We can’t read all the tea leaves in the tiny cup of previous decisions. The judge might simply have been trying to follow the law, regardless of his policy preferences.

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On the positive side, those fighting to enforce our country’s immigration laws are expressing relief and delight. Both Mickey Kaus and Ann Coulter lobbied hard for Kavanaugh, citing the endless “lawfare” waged by open borders attorneys — and his firm opinions on that subject in the past. Given that four members of our nation’s highest court were willing to ignore the Constitution on Trump’s travel ban, this issue is clearly critical.

 

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