Brett Kavanagh: The sky is falling! It’s the end of the world!
Yup, if you read moderate to left-leaning publications and blogs, you’ve probably heard that it’s the end of times for the US Supreme Court. Oh, the other hand, conservative-leaning sources warn of and are already complaining about Democratic lawmakers pulling out all kinds of tricks… really? Because McConnell and the Republican-led Senate treated Merrick Garland and Barrack Obama fairly?
Please… I’m not sure how many so-called “tricks” there are anyway. This confirmation has always, since the moment Anthony Kennedy announced his retirement, been about John McCain, Susan Collins, Lisa Murkowski, and Joe Manchin, Heidi Heitkamp, and Joe Donnelly… it has never been about fair play or judicial qualifications. If it were, we wouldn’t even be having this conversation. Brett Kavanagh is a qualified as any member of the Supreme Court has been.
Kavanagh graduated from Yale Law School, served three clerkships, and been a Federal judge for 12 years. And those clerkships? One of them was with the very same Justice Anthony Kennedy that Democrats are bemoaning for retiring.
In fact, on June 1, 2006, Kavanagh was sworn in as a member of the DC Circuit Court of Appeals by Justice Anthony Kennedy. It seems to me that Kavanagh has the blessing of the very man celebrated for his decisions in gay rights cases and other 5-4 decisions.
But, at the same time, I think it’s also important to put Anthony Kennedy into historical perspective as we evaluate his potential successor. Yes, Kennedy voted with the majority in two cases quite dear to Democrats: Boumediene v. Bush and Obergefell v. Hodges. I dare say that Kennedy voted to maintain abortion rights in Planned Parenthood v. Casey too, though with increased limits. But Kennedy is no darling of causes liberal after all: Kennedy voted with the conservative on the Court in Boy Scouts of America v. Dale, District of Columbia v. Heller, and Kansas v. Marsh.
In terms of Kavanagh’s own judicial decisions, supporters and critics alike point to Garza v Hargan and have declared – Kavanagh’s going to ban abortion! Personally, however, I know that I would not have wanted to make that decision; it’s not the open and shut case that many seem to think.
Breaking new: Kavanagh has been pro-business, critical of environmental regulation, and a supporter of Christian religious rights… wow… its almost like he’s a conservative appointee? And yet, judges are not susceptible to demands of lobbyists and the whims of voters; twice Kavanagh sided with the government in cases involving the Affordable Care Act. In another case, he errored on religious latitude in Priests for Life v. U.S. Department of Health and Human Services.
Which brings us to Kavanagh’s religious affiliation and its role in judicial decision-making. Yes, it is worth discussing Kavanagh’s religion to a limited degree. Kavanagh is Roman Catholic and, as such, will maintain the Catholic majority of the US Supreme Court. Having said that, however, what does that even mean? The Catholic majority has not voted en bloc: the conservative Catholics have voted to support the death penalty, and the liberal Catholics have supported abortion-rights, so it seems to me that Kavanagh’s political ideology is more influential than his religion. If you do want to discuss his Catholicity more, it is worth noting that he is a volunteer tutor at Washington Jesuit Academy; the fact that Kavanagh volunteers his time, and with Jesuits, speaks more to me that his Mass attendance.
Mitch McConnell, Merrick Garland, Justin Kennedy, and Donald Trump
Politically, there is a lot that sticks about recent nominations to the US Supreme Court. From the refusal to call for a vote on Merrick Garland, to the elimination of the filibuster rule to favor Neil Gorsuch, McConnell personifies the hypocrisy and ‘Swamp’ of Washington, DC. But that’s not Kavanagh’s fault; he played the game and worked his way up to be in consideration for a nomination, just as liberal lawyers and judges have done as well.
Should we mention the end of the apolitical court and Bush v. Gore? Kennedy voted with the supposed States’ Rights conservatives to assert Federal authority over the Florida ballot counting at the same time that the pro-Federal Democrats on the Court voted to support States’ Rights. The veil of judicial independence had finally been lifted.
Even worse, the recent revelations about family connections between Anthony Kennedy and Donald Trump are disappointing, nauseating, and potentially unethical. But that has nothing to do with Brett Kavanagh.
I think we owe it to Brett Kavanagh, and more importantly to ourselves, to judge Kavanagh with the Golden Rule, not by McConnell’s Rules.
Which brings me to my second to last points: the art of predicting SCOTUS voting.
Nominations to the US Supreme Court
When I think about the history of Supreme Court nominations, I think of Harriet Myers; I think we can all agree Kavanagh is more qualified and his nomination (Kennedy-Trump connections aside) less nepotistic than a president nominating a member of his staff.
If you want qualified, has there ever been a more qualified nominee than Judge Robert Bork? Yet being qualified wasn’t the issue, it was his well-documented history of judicial decisions. As a result, presidents of both parties have nominated younger, less documented judges ever since; so, it would be hypocritical to criticize Kavanagh for his judicially-speaking nascent age of 53.
But most of all, when I think about nominations to the US Supreme Court, I think of Earl Warren. Nominated by Republican US President Dwight D. Eisenhower, Warren, when lifted from the confinement of political accountability, Warren became the most liberal Chief Justice in history. I also think of Sandra Day O’Connor and how disappointed Reagan and the conservatives were with her voting record… but more recently, I think of the make-up nomination to Judge Bork, Douglas Ginsburg. Can you believe we almost had a member of the Supreme Court who smoked marijuana?!!?! Thank goodness, Ginsburg withdrew his nomination… after all, could you imagine two Ginsburgs on the same Court? So, President Ronald Reagan settled on a Circuit Judge with exactly 12 years of experience to be his reliable conservative. That Associate Justice, of course, was Anthony Kennedy.
Chief Justice John Roberts
Finally, there is the nature of the Court and the leadership style of Chief Justice John Roberts. Supreme Court Justices do not make isolated decisions in a vacuum. The Nine meet privately and reflect upon each case, circulating draft decisions for discussion. Roberts, in particular even among other Chief Justices, is acutely aware of the partisan poison in American and has worked hard to build 7+, 8+, and even unanimous decisions. Look no further than Masterpiece Cake v CCRC. In the room of consensus, Kavanagh is just one voice. Yes, he is a conservative voice, but the deliberative and congenial nature of the Court lends itself to being caretakers of the Constitution, not Lone Ranger Constitutional cowboys.
Brett Kavanagh has said the right things. In 2006, Kavanagh told the US Senate, “I firmly disagree with the notion that there are Republican judges and [Democratic] judges,” he said. “There is one kind of judge. There is an independent judge under our Constitution.”
Like Roberts, Kavanaugh seems to give broad consideration to executive authority and unitary executive theory; yet Kavanagh has also worked for the Independent Council’s Office and wrote sections of the Starr Report that criticized President Bill Clinton and, ultimately, was used as an instrument to impeach Clinton.
So, who is the real Brett Kavanagh? I think we’ll have to wait until he’s actually been confirmed and begins to make his mark. Ultimately, we won’t really know until he’s been on the court for 30 years like his old boss, Anthony Kennedy.