Wikimedia Commons
The president’s new Supreme Court nominee is, at his most basic, a classic conservative choice.
By Andrew Cohen, J.D. / 07.10.2018
Fellow
Brennan Center for Justice
President Trump’s new Supreme Court nominee, Brett Kavanaugh, already has signaled that he will be sympathetic to the president’s legal position in the looming court showdown over the Russia investigation. For all we know about Trump, that may be the single most important reason why he picked Kavanaugh to succeed Justice Anthony Kennedy. Not only will Kavanaugh almost certainly deliver the conservative holy water for gun rights zealots and anti-abortion activists, he’ll also perhaps cast a deciding vote to help this president stay in office or at least prevent him from being indicted. Wouldn’t we all like to hire and promote the judge who is bound to preside over our blockbuster case?
There is nothing fancy about this pick. It is not the “outside the box” choice that some in Trump’s tribe were hoping it would be. Kavanaugh is a known commodity in Washington, and in legal circles — in many ways even more so than Neil Gorsuch was before his ascension to the High Court. Kavanaugh is relatively young and an ideologue, but he’s proven he can play well with other judges and with members of Congress. In temperament, he calls to mind more John Roberts than Samuel Alito, the two justices George W. Bush put on the bench. But he’s closer to Alito than to Roberts when it comes to a judicial ideology, and that’s why he presents such a danger to longstanding — and still highly popular — precedent.
He’s not a fancy pick because he doesn’t have to be; we are witnessing the raw exercise of political power and little more. A president who lost the popular vote by nearly 3 million votes has just appointed a conservative judge whose views on abortion and gun rights and many other substantive issues are opposed by a clear majority of Americans. There was no evident effort by the White House, nor its allies on Capitol Hill, to acknowledge this reality, this undemocratic imbalance. There was no effort to find a moderate voice to replace Kennedy. There was no public discussion about the value of trying to buttress the court’s centralism amid the nation’s broadening partisan divide.
Trump picked Kavanaugh not because he cares about judicial philosophy or temperament, or even understands it, but because Leonard Leo and his fellow travelers at the Federalist Society told him that it was safe to do so. Has a president ever so obviously outsourced such a critical decision to an outside group? Has there ever been such a blatant lie than the one Kavanaugh told last night when he proclaimed that “no president has ever consulted more widely or talked with more people from more backgrounds to seek input about a Supreme Court nomination”?
President Trump did not reach out to progressive groups to listen to what they had to say about this pick. If he responded at all to Sen. Chuck Schumer’s suggestion to nominate Merrick Garland, there is no public record of it. No, this pick is like everything else Trump has done since taking office. It’s a paean to his 40-percent white nationalist base and a middle finger to the rest of us. You can be sure there is no David Souter on the list of acceptable candidates Leo gave to the White House; no chance that Kavanaugh will do to Trump what Souter did to George H.W. Bush once he got onto the court. If there are any liberals on the court decades from now, they’ll find no moderating succor from Kavanaugh.
After all, what’s the point of having a Senate Majority Leader steal a Supreme Court seat for you only to see it stolen back by a nominee who moves to the center? Whatever else it does to the future of American law, the nomination of Kavanaugh, the cementing into place of a conservative majority on the court for the foreseeable future, is a victory for Mitch McConnell. Even in his wildest dreams, the shameless cynic could not have predicted this result two years ago when he refused to even allow a Senate vote on the Garland nomination.
In Kavanaugh, anti-abortion activists finally will get to witness the demise of Roe v. Wade, in form or in function, and the NRA will get to see its blood money put to good use as countless gun laws are restricted in the name of the Second Amendment. This will happen despite what Kavanaugh once said about Roe being binding precedent and what Justice Antonin Scalia wrote about the limitations of the Second Amendment. In Kavanaugh, big business will have another empathetic man on the court, a justice who won’t hesitate to side with employers over employees, corporations over unions, polluters over environmentalists, vote suppressors over voters and Republican causes when a Republican inhabits the White House.
If (when) Kavanaugh makes it onto the bench, he will join Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch on its far right. The Chief Justice, John Roberts, will become the court’s “swing” vote by default only since he will, in the vast majority of cases, side with his fellow Republican nominees. The new dynamic will drive virtually every majority conservative opinion toward the outer edges of the law. This is bad news not just for abortion rights but for contraceptive rights in general. It’s bad news not just for gay rights but for the protection against discrimination. This nominee is bad news for those who believe in the separation of church and state and good news for proponents of “religious liberty.”
Whatever happens next, let’s not spend too much more time wringing our hands over what Sen. Susan Collins, the Maine Republican, is going to do now. She is no more a moderate — and thus a potential “swing” vote on this nomination — than was Justice Anthony Kennedy during his many decades on the court. Collins has voted 99 percent of the time for Republican judicial nominees. Kavanaugh will say all the polite things Supreme Court nominees are taught to say about respecting precedent and keeping an open mind — “I interpret the law, not make the law,” he has said — and that will give Collins all the cover she needs to vote for him. (That and the fact that some conservatives say they believe that Kavanaugh, of the second Bush era, isn’t conservative enough for them.)
He’s conservative enough, trust me. He will make the man he is to replace, Anthony Kennedy, seem like William Brennan, the court’s long-ago liberal lion. Already the Washington and Ivy League legal establishments are rushing to tell us how great a guy Kavanaugh is, how generous and honorable he is, and how studious he will be as a Supreme Court justice. Just like John Roberts was when he voted to gut the Voting Rights Act. Just like Samuel Alito was when he voted against gay marriage. Just like Neil Gorsuch was when he endorsed Trump’s odious travel ban. Just like Clarence Thomas is when he pushes year after year to strike down gun laws and abortion rights.
It’s going to be a long, hot summer of discontent, not because Kavanaugh is unqualified for a spot on the court but because of how he will have gotten there — by hook and by crook — and because of what his presence for the next 30 years will mean to hundreds of millions of Americans. It is shocking to realize that it’s been nearly 50 years since the Supreme Court had a Democratic-appointed majority. That means the vast majority of us have never known anything but a conservative court, and now we are on the cusp of the most conservative court in decades.
“I interpret the law, not make the law,” promises the man who is about to help remake the law as we know it without giving us the opportunity to do anything about it now.
Originally published by the Brennan Center for Justice under a Creative Commons Attribution-No Derivs-NonCommercial license.