Putting Kavanaugh in perspective: The positives and the concerns

· July 10, 2018  
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Brett Kavanaugh
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Who would have thought that in 2012 we’d nominate the godfather of Obamacare to run against Obama in the presidential election? Probably the same person who would have predicted Trump would nominate the man who crafted the foundation of Roberts’ “Obamacare is a tax” premise on the lower court. Yet here we are, with Judge Brett Kavanaugh of the U.S. Court of Appeals for the D.C. Circuit as the next Supreme Court nominee. He’s undoubtedly much better than the man he is replacing, but he’s unlikely to be the Clarence Thomas we need at this juncture.

Kavanaugh was always considered the front-runner from day one by the D.C. legal elites. Mike Lee was never seriously considered. I’m all for moving Kennedy’s seat to the right, but if the legal elites in the Republican Party will do nothing to fight judicial supremacy other than “appoint good judges,” shouldn’t we find the best?

So is Kavanaugh the best we can do? Time will tell where he stands on some of the critical doctrines on the Constitution and the role of the courts. He is clearly solid on the Second Amendment and on fighting the growth of the administrative state, as all of the Federalist Society-approved candidates are. Kavanaugh is particularly heralded for his scholarly takedown of the constitutionality of the CFPB in a recent case.

Where is he on some of the other critical issues?

Here are several concerns that conservatives should research thoroughly throughout the confirmation process and Kavanaugh’s meetings with senators:

  • Obamacare regulation as a tax: In Seven-Sky v. Holder (2011), Kavanaugh wrote a dissent opining that the individual mandate of Obamacare could not be challenged in court because, under the Anti-Injunction Act of 1867, no lawsuit can be brought until the plaintiff actually was forced to pay the tax, which in this case wasn’t for another few years. I’m a big stickler for courts staying in their lane and properly abiding by rules of standing, but in this case his entire rationale was built upon a dangerous premise that a government mandate/penalty was really a tax. This served as the basis for John Roberts’ infamous opinion upholding Obamacare.
  • Endless standing to rip God out of the public square: In Newdow v. Roberts, an infamous atheist sued to take the words “so help me God” out of the presidential oath of office. Aside from it being insane to suggest this violates the Establishment Clause, the notion that a random person could get standing to sue and that this is even a justiciable case violates the very essence of what distinguishes a court from a legislature. It lies at the core of what is allowing the ACLU to shut down our civilization for years with radical forum-shopped lower courts. While, in his separate opinion, Kavanaugh ruled the right way on the Establishment Clause, he held that the plaintiff indeed had valid standing to sue as “offended observers.” This is the type of nonsense that is plaguing public prayer and display of the Ten Commandments across the country. It is simply astounding for any originalist to disagree with other justices in granting such standing and is very consequential for cases that will reach the Supreme Court soon. Kavanaugh hid behind Supreme Court precedent, but admitted that the high court never directly addressed the issue of this type of standing.

These rulings taken together, Kavanaugh is essentially saying that a random atheist with an obscure and abstract claim against a presidential oath can get standing, but individuals directly forced to purchase a private product and engage in commerce couldn’t get standing.

  • Contraception as a “compelling government interest”: Almost every circuit upheld Obamacare’s contraception mandate. Like most of the originalist judges, Kavanaugh dissented from these opinions and sided with plaintiffs in Priests for Life, which is good. But what is still puzzling is that he gratuitously and explicitly conceded that the government has “a compelling interest in facilitating women’s access to contraception.” While the Supreme Court did assume that the government might have a general interest in promoting contraception, the court never assumed, much less ruled, that such an interest would apply to the narrow subset of employees at religious institutions. The fact that he didn’t join the stronger dissent from Judges Brown and Henderson – built upon the premise that the government must find a compelling interest specifically in mandating “seamless” coverage – raises concerns that we won’t see him categorically opposing the Left on these issues and joining Thomas on the court.
  • Immigration: Immigration is perhaps the most important issue winding through the courts now, and most of the nominees had thin records on the issue. I haven’t seen anything big on the fundamental issues of the plenary power doctrine, for better or worse. However, as we reported last year, the D.C. Circuit absurdly granted an illegal alien the right to demand access to an abortion. While Kavanaugh rightly dissented on the grounds that the opinion drastically expanded abortion jurisprudence, he declined to sign on to Judge Karen Henderson’s indispensable dissent, finally laying down the law on sovereignty and the plenary power doctrine. That was a much-needed dissent, given what is going on throughout the circuits on immigration, and it is a bit peculiar that he didn’t sign on to that dissent, while Henderson signed onto Kavanaugh’s dissent tackling the abortion angle.

Will Kavanaugh be bold enough to recognize the problem with the existing judiciary?

Based on the well-oiled lobbying effort from day one and the media reports that Justice Kennedy himself was partial to his former law clerk replacing him, it appears that the fix was in quite early. It appears that, despite Trump’s alleged penchant for thinking outside the bubble, the D.C. conservative establishment and its affinity for Ivy League law school graduates still reign supreme. It is this same groupthink that has allowed the judiciary to spiral out of control for years, careening straight toward judicial supremacy with no looking back.

Perhaps in the judicial irony of all ironies, George W. Bush, on page 98 of his book “Turning Points,” credits Kavanaugh, whom he nominated to the D.C. Circuit, for pushing him over the edge to pick Roberts for the Supreme Court over conservative superstar Michael Luttig:

Brett told me that Luttig, Alito, and Roberts would all be solid justices. The tiebreaker question, he suggested, was which man would be the most effective leader on the Court — the most capable of convincing his colleagues through persuasion and strategic thinking. I believed Roberts would be a natural leader.

The former president makes it clear that it was his personal choice to pick Roberts, but what concerns me is that Kavanaugh thought someone like Roberts would be just as good as someone like Luttig. This is ironically the same concern I have with Kavanaugh himself. I’m very confident he will be better than Kennedy and likely better than Roberts. But there is a huge difference between that and someone of Clarence Thomas’s caliber, as we saw in his concurrence in the travel ban case, and his willingness, unlike his colleagues, to completely ignore any of the post-constitutional thoughts of the prevailing legal elite even on the Right. It would have been great to fill the seat with someone on par with Thomas, not someone who was preferred by Anthony Kennedy. That would have been the best poetic justice for a seat that should originally have been held by Robert Bork.

If judges are everything, then we need the best

I have long maintained that the federal judiciary and the entire legal profession are irremediably broken and we will not fix them without wholesale reform simply by “appointing better judges.” But the right-leaning legal establishment sees things differently. They think it’s all about appointing their people to the bench because they fail to see that the capacity of a good judge to do good is no match for the capacity of the existing bad judges, coaxed by the much stronger liberal litigators, to do bad.

It’s bizarre that these same legal advisers don’t push Trump into using different tools to combat the very dangerous lower court orders on immigration and have declined to support Louie Gohmert’s bill to strip lower courts of jurisdiction over immigration. We will have no country left if we wait years for the Supreme Court to take up these appeals while tens of thousands of impoverished aliens, sown with elements of MS-13, are flooding our communities.

They have simply placed all of their hopes and aspirations into judicial picks, further fueling the current reality that the courts are supreme and nothing else matters. If that’s the case, why not go for a grand slam? I would have been OK with anyone on the list, if we fight judicial supremacy on multiple fronts, but since we don’t, then we want ironclad guarantees.

“At least he’s a lot better than the other side” is no longer good enough. If we are going to accept the premise, as the president himself did last night, that “The Supreme Court is entrusted with the safeguarding of the crown jewel of our Republic, the Constitution of the United States,” we can’t afford to settle for anything less than the best. The aforementioned concerns notwithstanding, conservatives should be happy with much of Kavanaugh’s record but should look a little deeper before jumping in with both feet.


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Author: Daniel Horowitz

Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.