Now that President Trump has nominated Justice Brett Kavanaugh to the Supreme Court of the United States, the dog and pony show can begin.
This is the point where the nominee, who is very likely to have opinions on many matters of politics and governance, will purport to have no opinions at all except on past precedent and that Roe v. Wade is settled. It’s all quite exciting and largely devoid of actual legal substance.
Republican presidents have struggled to nominate conservative justices to the Court. President Ford nominated Justice John Paul Stevens, a lefty and bowtie enthusiast in 1975. Stevens is the same now-retired justice who recently penned a column for the New York Times titled “Repeal the Second Amendment,” so it’s fairly clear where his allegiances lie. President George H.W. Bush was half-right in his nominations of Justice David Souter, who was on the left side of the court’s spectrum and Clarence Thomas, who is a conservative bulwark if there ever was one.
However, Democrat presidents have not had this kind of issue in nominating justices to the Supreme Court who shared their ideologies. President Clinton appointed Justices Ruth Bader Ginsburg and Stephen Breyer and President Obama appointed Justices Sonia Sotomayor and Elena Kagan, and both have been largely cookie-cutter liberals. Keep in mind this does not necessarily make them bad jurists, but their ideology is fairly well accepted and was from the beginning without the Roe v. Wade catechism spouted by every Republican Supreme Court nominee in the last 20 years.
In fact, if you look at the quotes from President Obama when he was a senator faced with voting on President George W. Bush’s selection of Chief Justice John Roberts, he said “It is my personal estimation that he has far more often used his formidable skills on behalf of the strong in opposition to the weak.” On the selection of Justice Samuel Alito, Obama said “I have found that in almost every case, he consistently sides on behalf of the powerful against the powerless; on behalf of a strong government or corporation against upholding Americans’ individual rights.” Like it or not, these are thinly veiled calls for socialist judges. Obama’s words still echo through the sentiment of the Senate Democrats. Now, the Democrats want agreement from people who will likely not agree and are bolstered by the battle cry of “Remember Merrick Garland.”
Judge Kavanaugh, if confirmed (and I suspect he will be), seems to be a fairly mainstream Republican. He seems to be stout enough on the Second Amendment in writing a dissent that semi-automatic rifles are along the lines of semi-automatic handguns and should not be up for a ban by Washington D.C., treading along the lines of the landmark District of Columbia v. Heller decision issued by the Supreme Court in 2008.
However, it’s possible Kavanaugh will be less than stellar on the Fourth Amendment, which Republican jurists seem to write off in favor of warrantless government surveillance and uncomfortably expanded search abilities of law enforcement officials.
Of course, on the D.C. Circuit Court of Appeals, Kavanaugh was limited to his interpretation over what the Supreme Court ruled, and not how he feels the law actually reads under the Constitution, so it is difficult to handicap what he will do as a Supreme Court justice.
The biggest argument I see on both sides of the political spectrum is Supreme Court justices should follow precedent, but what they each neglect to acknowledge is the only court in the United States that can overturn the Supreme Court is the Supreme Court themselves. The argument of stare decisis for the Supreme Court tends to fall flat simply because of the immense power afforded to the Supreme Court since Marbury v. Madison.
Being a former chapter president of the Federalist Society, I firmly believe it’s a judge’s job to say what the law is rather than what they think it should be. However, that gets more complicated on the Supreme Court level simply because they are the highest court, and are the last word in interpreting the law. This tends to shift the focus toward what the Supreme Court has said the law is versus what the Constitution actually says.
There is always room for argument either way, but there are a great many cases decided by the Supreme Court that embark on a rabbit trail of jurisprudence only to arrive at a backwards decision. For further reading on backwards decisions, see Chief Justice Roberts’ opinion in NFIB v. Sebelius, which upheld Congress’s power to enact most provisions of the Affordable Care Act.
Ultimately, I can’t speak to Kavanaugh’s performance if he is confirmed, but it appears we could do worse. Granted, I would prefer a Court packed with more Clarence Thomas clones, but this will likely do for now.In the meantime, the minority party in the Senate does love a circus – especially in a midterm election year when the party breakdown is razor-thin and Democrat Senators are drooling over the opportunity to resurrect Ted Kennedy’s treatment of Judge Robert Bork.
At the very least, it will be entertaining to watch.