July 12, 2018

Second Thoughts On Kavanaugh's "Expected" Conservatism

Everyone seemingly is expecting that president Trump's nomination for the Supreme Court to replace retiring Justice Anthony "swing vote" Kennedy, is a slam dunk constructionist win for conservatives.  The Left thinks the sky is falling.  Conservatives from all walks seem to think that this selection merely represents a safe pick, or that the president is trying to mend fences between his populist and conservative supporters and the Republican establishment, or that Kavanaugh was simply 1 of 4 good candidates on the president's short list.  But one need only look back in history to fret that maybe we should be a little worried. Am I worried yet? Yes, a little bit.

I'm not suggesting Brett Kavanaugh was/is a bad choice, but rather that there is no guarantee that he is a great, or even over the long term, a good choice.

Exhibit A: David Souter


In 1990 George H.W. Bush nominated David Souter to the Supreme Court. Not surprisingly his nomination was vehemently opposed by liberal Groups like the National Organization for Women and the NAACP.

And the relatively easy ride this time around for Roberts is not just because he had no significant paper trail. Neither did Souter, as one official from the National Organization for Women Legal Defense and Education Fund testified. But that didn't stop NOW then-President Molly Yard from saying Souter would be "ending freedom for women in this country." He was, the opposition concluded, a most likely vote to overturn Roe v. Wade . He turned out to be a solid liberal vote.
Meanwhile on the right, Souter was supposed to be a home run:
When Souter was nominated, he was as little-known as any nominee could be. He had spent his life in New Hampshire, the last seven years of it on the state Supreme Court, where cases shed no light on any matter of constitutional import. He’d been elevated to the federal bench only six months before George H.W. Bush chose him for the highest court in the land.

His chief asset, in fact, was that, in sharp contrast to Bork, whose writings and opinions were bountiful and provocative, Souter had no paper trail whatsoever. So when White House chief of staff (and former New Hampshire governor) John Sununu proclaimed that Souter would be “a home run for conservatives,” many on the right were convinced.
Souter might represent the prototype for Kavanaugh - a "Yankee Republican", an inside the beltway (at least inside then president Bush's Beltway") guy.  Kavanaugh is a lifetime Wasington D.C. denizen.  You cannot hold that he was born and raised in the swamp as an identifier against the man, but it is fair to suggest it is an indicator.  

The concern then becomes that as Souter drifted to the center and then to the far left in his court decisioning, so too might Kavanaugh.  The markers are there - the left is up in arms, the right sees him as a win, and Kavanaugh is an Establishment, Inside-the-Beltway guy.  Furthermore there is evidence that president Trump was looking for a slam dunk, just as then-president Bush was looking for someone who could not be Borked.  Furthermore, there's evidence that Trump might be trying to bridge the Establishment GOP with his voter base with this pick. In other words, both nominations were to some degree, politically calculated. Is that worrisome? Are the similarities troubling? Yes.

Souter of course is not the only Exhibit, just the most relevant in my opinion.  Sandra Day O'Connor, the outgoing Anthony Kennedy, and even Justice Roberts drifted far to the left of where they started.  Apparently it's the natural fallout of living inside the Beltway, or perhaps  just age.   In any case, a rock-ribbed conservative justice as a starting point is a better place to be if the drift leftward turns out to be inevitable, regardless of the reason for the drift because preserving as much originalist view on the court as possible is important.

Is Kavanaugh the next Souter?  I don't know but like every conservative, I hope not.  I'm just not convinced that the starting point is as solid as it felt with Gorsuch.  One thing is certain though - the howls of outrage from the collective left are not basis enough of a reason to feel confident about the pick.  They've been as wrong about Republican presidential nominations to the Supreme Court as have those same presidents who made weak nominations.  At this point I'm ready to revisit my ardent support for Gorsuch (not out of any specific reason, just a need to do a more detailed personal vetting of my opinion).  President Trump has offered a good track record of conservative accomplishments so far, but we are still in the short term. It will be a lot more obvious 20 years from now how successful president Trump  has been on delivering for conservatives on the economy, jobs border security, law and order and the Supreme Court.  Let's hope it looks as good then as it does now.

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