President Trump has nominated Brett Kavanaugh to the Supreme Court. Kavanaugh is a known conservative justice who has served on the US Appeals Court since 2006 and who actually clerked for Justice Kennedy at one point. Predictably, there have been a number of takes since the announcement. (Some include gratuitous usage of the 👏 and 🔥 emojis, but that’s just the Interwebs in 2018). Let’s put some scrutiny to them.
Here are four popular positions about Trump’s pick– analyzed and nit-picked for accuracy. And as you could probably guess from the title, they aren’t exactly overflowing with it.
“Republicans Refused to Seat Obama’s Nominee Since it was an Election Year. It’s an Election Year, so We Should Wait Until 2019.”
For the record, I feel that the Republican’s move to avoid even considering Merrick Garland was an abysmal abrogation of their constitutional responsibilities. Even worse, their justification for doing so was paper-thin; they paraded around a “precedent” that was cut from whole cloth. It was chicanerous, plain and simple.
There’s a but coming.
But! It’s totally disingenuous to frame their argument as being one about elections, generally. It was about the people’s voice for a Supreme Court choice being proxied by their choice for President– the individual who nominates justices to the Court. The senate obviously matters here, but in a totally different way.
Joining the Republicans in the mud is not a good look for Democrats. They have to tread carefully to avoid having their blue wave rebuffed by a red barrier. This sort of move might give Republicans something easy (read: not-Trump) to energize their base around for November. That wouldn’t negate the gains Democrats would still get, but a sufficiently strong barrier could stop them from securing the majority in the House.
“Kavanaugh is Going to Push the Court Right!”
This is true, but not as much as people would think. Kavanaugh’s appointment is probably going to put Chief Justice Roberts as the ideological center of the court. This will certainly make the court trend slightly more rightward and will be most visibly seen in cases dealing with the first amendment and the extent government should regulate the economy and environment. These are certainly important issues, but it’s also important to note that the court, with a few notable exceptions, has tended to rule in favor of individual liberty and reduced federal action since the 80’s/90’s. Kavanaugh himself isn’t going to be dragging it that far rightward. Indeed, on some measures of judicial ideology, he’s noticeably to the left of Gorsuch.
“Kavanaugh Poses an Existential Threat to Women and Healthcare!”
I’m curious as to whether people feeling this way in 2014 because putting Kavanaugh on the bench would make the court come pretty damn close to mirroring it ideologically.
President Trump has appointed two conservative justices. Those justices are replacing other conservative justices. The notion that Kavanaugh poses some novel threat to these causes ignores that basic fact.
Some people have argued that since there are already cases pertaining to abortion and healthcare in the lower courts the appointment of any conservative justices constitutes a threat to those rights. But these ignore the scope of the cases and the likelihood that they’ll actually reach the court. Considering these makes the fervent claims appear more hysterical than anything.
And the Truth is is that we really don’t know how he’s going to turn out on those issues. He hasn’t had many opportunities to really rule on them. Regarding abortion, I’m curious to see if Senator Susan Collins (R-ME) eventually endorses him since she’s made clear that a justice who would repeal Roe v. Wade would not receive her support. That might provide a more clear signal than his opaque judicial record on the topic.
“Someone Being Investigated for Treason Shouldn’t Be Nominating His Own Judge!”
This is not a straw-man. I honestly wish it was. This is something that you can readily find spending an iota of a minute in political Twitter.
First off, if the President is going to be indicted on anything it isn’t treason. It’d most likely be obstruction of justice. Equivocating the two is like calling a drunk driver a mass murderer. Both are horrendous and deserve to be punished, but they exist on totally different levels.
But one can appreciate the largest wellspring of this ire: Kavanaugh wrote an article in 2009 arguing that Presidents ought to be exempt from prosecution while in office. But a closer look at the argument reveals that it’s not that he thinks that the President should be above the law. It’s that he thinks that Congress should work to rein in the President and impeach them so that they could stand trial. Indeed, many on the right are irked since he actually outlined an way to get a hypothetical president impeached so that they could stand trial.
Congress reining in a President? In today’s hyperpolarized state, what a novel and refreshing thought.