This past Monday night, President Trump nominated Judge Brett Kavanaugh to the Supreme Court, predictably sending progressives into apoplectic (and apocalyptic) fits of self-righteous virtue-signaling and white-knighting. Naturally, Leftists realize their decades-long project of circumventing representative government through the courts might backfire—when you create an excessively powerful institution and lose control of it, you start to worry that weapon will be turned back on you.
There’s been a great deal of analysis since then of Kavanaugh and how his nomination might shift the direction of the Court. I’m not steeped enough in the details to make a judgment call myself, though it seems that Kavanaugh is remarkably experienced, and interprets the Constitution fairly narrowly (in the sense that he’s not one to create “emanations of penumbras” of rights or legislate from the bench).
I’m a bit concerned that he’ll be too restrained, a la Chief Justice John Roberts, who disastrously upheld the Affordable Care Act twice, the second time largely on the grounds that the Court should avoid overturning what legislatures enact. That’s a good impulse generally, but not when the plain language of the act states something contrary to what the Court rules, and the Court deciding that Congress “meant to write it another way” is a funny way of exercising judicial “restraint.”
Regardless, my sense is that Kavanaugh is a solid and safe pick. I’d much rather have seen, say, Utah Senator Mike Lee get the nomination—there’s no ambiguity about his commitment to constitutionalism—but Kavanaugh might stand a better chance of surviving his confirmation vote (after a predictably theatrical bout of boisterous dissent from doomsday-speaking Democratic Senators).
But I digress. In attempting to analyze the Supreme Court, Conservative Review‘s Joseph Koss has applied a nifty little model to try to make sense of where the Court has been, and where it might be headed with the addition of Kavanaugh.
Koss is quick to point out that he’s not completely satisfied with this model—he applies the classic Dungeons and Dragons alignment system (the nerd in me is rejoicing)—and that some justices don’t quite fit into one of the nine slots, but he explains his placements thoroughly and carefully.
Check out his analysis here: https://mailchi.mp/ab9d22079504/supreme-court-alignment?e=0d04a04a52
He also invites readers to tell him how wrong he is here.
What do you think, TPP readers? Is Kavanaugh a slam-dunk pick? A Washington-insider swamp creature sell-out? A rock-ribbed conservative? Leave your thoughts and comments below!
11 thoughts on “SCOTUS D&D”
In May 2006, Brett Kavanaugh stated he “would follow Roe v. Wade faithfully and fully” and that the issue of the legality of abortion has already “been decided by the Supreme Court”. During the hearing, he stated that a right to an abortion has been found “many times”, citing Planned Parenthood v. Casey.
I’m curious what you think about this?
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Thank you for your comments. When I wrote about Chief Justice Roberts’s brand of “judicial restraint,” these kinds of examples (not these examples in particular, as I wasn’t aware of them, much to my discredit) are what I had in mind: “well, other Courts have spoken, so it’s a done deal.” When Judge Kavanaugh sat on a lower court, I could see how he might “follow _Roe v. Wade_ faithfully and fully,” as it was a Supreme Court decision, and I don’t think lower courts can overturn SCOTUS rulings. So in that context, those remarks make sense, and might also pertain to his “many times” comments re: _Planned Parenthood v. Casey_.
So I can’t tell if these are examples of a lower court judge exercising proper deference to higher, superseding SCOTUS rulings in his capacity as a lower court judge, or if these represent his actual stances on _Roe_ should a case pertaining to it appear before the Supreme Court. They certainly _look_ bad from a pro-life standpoint, as they don’t give much assurance—indeed, they seem to do the opposite—that Kavanaugh would side with life and the unborn should such a case before him in his capacity as a Supreme Court justice.
Of course, the confirmation process is highly political, and he could be using the legal justification I presented in the first paragraph of this comment to avoid Democrats painting him as a warrior in the “war on women” or some such nonsense. I’d have to read the “many times” comment in context, but it sounds like the kind of artful dodge that previous SCOTUS nominees have used when asked similar questions, although his appeal to the _Planned Parenthood v. Casey_ case is disconcerting, to say the least.
I wish I could be more optimistic. Republican presidents have a bad track record of nominating justices that burn us (Eisenhower, Reagan, George H.W. Bush, and George W. Bush all made questionable nominations; Eisenhower allegedly said that nominating Chief Justice Earl Warren was “the biggest damn fool mistake I ever made”). I would have much preferred, say, Senator Mike Lee of Utah (or—Thy Will be done—Senator Ted Cruz of Texas), but after reading your comment, I’d have to fall where Mark “The Great One” Levin does: there’s some good here with Kavanaugh, and there’s some bad.
What do you think Megan? Thanks again for the comment.
I definitely see your point about his sitting on a lower court; I’m curious in what context it was he made these statements 12 years ago. I’ll look more into that and see what I can find.
I, too, wish I was more optimistic but I’ve never been that way about much.
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Agreed. I just saw a headline that Senator Rand Paul of Kentucky is considering voting against confirmation, but it’s more to do with Fourth Amendment search-and-seizure concerns than with _Roe v. Wade_. Here’s the piece: https://www.msn.com/en-us/news/politics/rand-paul-breaks-with-republicans-as-he-doubts-trump-supreme-court-pick/ar-AAA738x?ocid=spartanntp
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