OK, I had never heard of Brett Kavanaugh, Donald Trump’s latest nominee for the Supreme Court, before last week either. But it doesn’t take long to discover that he is possessed of a razor-sharp legal mind and a very traditionalist judicial philosophy. By “traditionalist,” I mean that he believes that the judiciary’s role is to interpret the laws of the United States as written, not to use the law to further his personal policy preferences.
Until at least the mid-1950s, this was the dominant sentiment on the Supreme Court. It was cast aside in succeeding years as Justices found “emanations and penumbras” (William O. Douglas’s words) in the Constitution to justify social policies that they favoured. When Donald Trump promised during his presidential campaign to nominate Judges and Justices whose judicial philosophy was akin to Antonin Scalia’s, he was promising to help return the judiciary to its traditional role as the guardian of the Constitution, not a covert legislative power. With the help of the Federalist Society, which has assembled a robust roster of candidates, Trump has done just that with scores of lower court appointments, the appointment of Justice Neil Gorsuch, and now the nomination of Brett Kavanaugh.
Will Kavanaugh make it through the gruelling Senate confirmation process? There are 51 Republicans (including the terminally ill John McCain). Confirmation is now, thanks to Harry Reid’s attack on the filibuster, a matter of a simple majority. There are one or two dubious GOP Senators, but there are also several Democrats in red states who are up for reelection in November, which means, the entreaties of Democratic minority leader Chuck Schumer notwithstanding, they will mostly vote to confirm Kavanaugh. So the answer to the question, I predict, is yes, Kavanaugh will be confirmed.
That does not, of course, mean that there will not be an abundance of left-wing hysteria about his candidacy. Typical is former Democratic National Committee Chairman (and Governor of Virginia) Terry McAuliffe’s imprecation that “the nomination of Judge Brett Kavanaugh will threaten the lives of millions of Americans for decades to come and will morph our Supreme Court into a political arm of the right-wing Republican Party.”
“Threaten the lives of millions,” eh? That’s the brief. Students, faculty, and alumni at Yale, Kavanaugh’s alma mater for college as well as law school, wrote an “open letter” noting that they were “educators ashamed of our alma mater” for putting out a press release proudly hailing Kavanaugh’s nomination. “Judge Kavanaugh’s nomination,” they wrote, “presents an emergency”— an emergency! — “for democratic life, for our safety and freedom, for the future of our country. . . . Without a doubt, Judge Kavanaugh is a threat to the most vulnerable.”
This about a man who has served with notable, one might even say, with ostentatious distinction on the United States Court of Appeals for the District of Columbia Circuit since 2006, who has written hundreds of meticulously reasoned opinions, and who was hired by then Dean, now liberal Justice, Elena Kagan to teach at Harvard Law School because he was a responsible and highly qualified conservative.
No, Brett Kavanaugh is just about as distinguished as it is possible for a candidate for the Supreme Court to be. Moreover, he has a picture-perfect private life. He coaches basketball at his daughter’s Catholic school and regularly volunteers at a charity that feeds the homeless. A couple of days ago, a passerby snapped a picture of him distributing food despite his busy schedule meeting with Senators: he had signed up for the stint before his nomination and decided to keep to his commitment. The picture went viral, much to Chuck Schumer’s irritation.
Of course, the Left would be up in arms about anyone whom Donald Trump nominated. Among the more amusing details in this sorry tantrum are the many signs, placards, and manifestos that have surfaced from left-wing sources categorically denouncing Trump’s nominee but with the space for the name of the candidate left blank.
Ironically, at the center of the left’s angst is the fate of abortion. It’s ironical because the left skirls about how Brett Kavanaugh will threaten “millions” of the “most vulnerable” when the more than 600,000 abortions performed annually in the US have snuffed out the lives of millions of the truly vulnerable. Some of the vulnerable are apparently more equal than others.
The left should take some consolation from Kavanaugh’s commitment to upholding the law. During his confirmation hearings in 2006, Kavanaugh was questioned by Chuck Schumer about Roe v Wade, the 1973 law that made abortion legal. “If confirmed to the D.C. Circuit,” he said then, “I would follow Roe v. Wade faithfully and fully.” Why? Because it was the law of the land. As a judge, Kavanaugh is sworn to uphold the law in light of the Constitution. That’s what he has done on the DC Circuit and that is what he will do on the Supreme Court of the United States. Donald Trump had a stellar list of candidates for the Court. He has picked one of the very best.