There’s been a lot of weeping a gnashing of teeth by the left because of Trump’s nomination of Judge Brett Kavanaugh to the Supreme Court. Although it will feel like it to Kavanaugh and his family, this is not personal. The attacks that have been and will continue to be leveled against Judge Kavanaugh would be the same regardless of who the President nominated. This is evidenced by the fact that the far left Women’s March released a statement that had XX instead of Judge Kavanaugh’s name because they were prepared to oppose whomever the president chose as his nominee.
Judge Kavanaugh is as qualified as any potential SCOTUS nominee. The left is focusing their opposition to his nomination on a couple of aspects of his record. First, his statement about deferring civil and criminal actions against sitting presidents. He wrote about this in an article on the separation of powers in the Minnesota Law Review which you can find here. They are trying to frame his position as though he believes that presidents are above the law. Anyone who has actually read the article is simply being dishonest if they interpret it any other way. He takes great pains to make sure that his statements can not be construed to suggest that a President should be exempt from ever taking responsibility for their actions while in office. Judge Kavanaugh makes it clear that he believes that the President should be able to conduct the business of running the country without the added pressure of dealing with defending himself against legal action. “Deferral would allow the President to focus on the vital duties he was elected to perform.”
Having worked for independent counsel Ken Starr while investigating Bill Clinton, he saw first hand how that affected the President and believes it hurt the country and the way he governed. He also stated in the same article that if a sitting president does do something “dastardly” – love that word – that the available remedy is the impeachment process.
Another big issue the left seems bent on using to try and block his confirmation is Roe v. Wade. That is a mistake that I hope they continue to make. While I haven’t read every opinion or paper that Judge Kavanaugh has written, those that I have read, as well as his public statements all indicate that he is a jurist who understands the original intent of the framers in drafting the constitution. He respects the precedent set by previous decisions and shows no indication that he would seek to overturn any decision without a strong, constitutionally sound reason for doing so. While I would like to see Roe v. Wade overturned, I am not of the opinion that his confirmation to the Supreme Court automatically signals that it will be. There will have to be some brilliant constitutional arguments brought before the court for there even to be a chance that it gets overturned.
Let’s not forget that conservatives have been disappointed before with SCOTUS picks. Justice Souter who was appointed by George H.W. Bush surprised conservatives by becoming one of the more reliably liberal justices on the court. Justice O’Connor, appointed by Reagan, who many expected to be a more conservative justice was often a swing vote. It was always difficult to predict how she would vote on any particular issue. The retiring Justice Anthony Kennedy, another Reagan appointee, was also was expected to be a more conservative justice. He turned out to be more moderate and often voted with the liberal wing of the court. Kennedy will likely be remembered as a more liberal justice.
The fact is that these things are hard to predict for conservatives. This is mainly because that unlike the left, conservatives don’t have a hive mind mentality. There were 17 republican candidates at the beginning of the race for the presidency in 2016. Most of them would identify themselves as conservative to one degree or another, but they disagreed with each other on many different issues. There were 5 democrat candidates and 1 from the Green party. The differences between them were negligible and largely semantic because they have all taken the same positions on most issues. The biggest difference is that Sanders is actually honest about being a socialist. By contrast, Justices appointed by democrat presidents consistently vote along the most liberal ideological lines.
Judge Kavanaugh will likely be confirmed, but despite his strong originalist track record, we really don’t have any way of predicting how he will rule in certain cases. In fact, if he ends up being a moderate swing vote like Kennedy, the balance of the court will not change. Logic and reason is not something the left likes to employ when it comes to their positions, hence the hysteria over a potential justice that may not swing the court wildly in conservative’s favor. However, if either Ginsburg or Breyer finally retire during Trump’s presidency, that nominee could potentially shift the balance of the court in the right direction. If that happens, given the conniption the left is having now, I can’t even imagine what they will do to ratchet up the opposition then. Considering the degree to which they have cranked it up the histrionics with this nomination, the next time it will just be more sound and fury, signifying nothing.