Opinion: Brett Kavanaugh: The Man Democrats Love to Hate – by Yosef Stein

The increasingly leftist Democratic Party has found its latest punching bag. His name is Brett M. Kavanaugh, and he’s a mild-mannered 53-year-old judge, Yale Law School graduate, husband, and father of two. Judge Kavanaugh, an esteemed jurist who has served on the DC Circuit Court of Appeals since 2006, was nominated by President Trump on July 9 to fill the Supreme Court seat being vacated by retiring Justice Anthony Kennedy. And Democrats have been collectively freaking out ever since.

Former Virginia Governor Terry McAuliffe, a Clinton ally and potential 2020 presidential contender, immediately helped set an over-the-top tone for Democrats, claiming that Brett Kavanaugh would “threaten the lives of millions of Americans for decades to come.” (Yes, he really said that.) Not wanting to be outdone, several hundred (presumably liberal) Yale Law students and alumni signed a July 10 letter asserting that “people will die if he is confirmed.” (A rebuttal letter expressing support for Kavanaugh, dated two days subsequent to the initial one, has gathered over 100 signatures from Yale Law students and alumni as of this writing. In other words, many Yale Law School graduates aren’t nuts.)

But the lunacy doesn’t end there. Senate Minority Leader Chuck Schumer (D-NY) tweeted that Kavanaugh’s nomination “put[s] our nation’s health care system in danger.” Numerous Democratic members of Congress rubber-stamped nearly-identical tweets referring to Kavanaugh as “a rubber-stamp for the Trump-Pence anti-woman and anti-health care agenda.” (The irony was apparently lost on these lawmakers.) House Minority Leader Nancy Pelosi (D-Calif.) added that Kavanaugh’s nomination is “a destructive tool on a generation of progress” that will “radically reverse the course of American justice & democracy.” The insane hyperbole goes on and on, but I think you get the idea.

What makes all this criticism (if you can be so kind as to call it that) all the more jarring is that Brett Kavanaugh is an utterly mainstream selection for the Supreme Court. He is universally regarded not only as intelligent and intellectual, but as a charitable, kind and gentle man as well. Last week, following a full day of meetings with senators, Kavanaugh was spotted volunteering at a soup kitchen – which is something he reportedly does regularly. By all accounts an exceptionally busy man, Judge Kavanaugh nonetheless makes time to serve as a volunteer coach for his children’s basketball teams.

Besides for being a good-hearted family man, Brett Kavanaugh sports sterling academic and professional credentials. He holds degrees from Yale University and Yale Law School and as a young man clerked for two appellate judges as well as the US Solicitor General and Supreme Court Justice Anthony Kennedy. In the 90s, Kavanaugh assisted Special Counsel Ken Starr in his investigation of President Clinton, which included arguing (unsuccessfully) in front of the Supreme Court regarding a related matter. Following brief but prestigious stints in private practice and the Bush White House, Kavanaugh was nominated by President Bush to the US Court of Appeals for the DC Circuit, generally considered the most consequential court in the nation other than the US Supreme Court. Kavanaugh has faithfully and effectively served on the powerful DC Appeals Court for more than 12 years, during which time he has written approximately 300 opinions on a broad range of legal topics.

Brett Kavanaugh’s legal record is so impressive – and the material from which to ascertain his competence so voluminous – that Democrats dare not attack his qualifications or intellect. Instead, they are attacking his ideology (and, in some shameful instances, his faith), painting him as a partisan conservative whose only interest lies in implementing a far-right agenda.

Truth be told, they aren’t completely wrong. Unlike Justice Neil Gorsuch, Trump’s first Supreme Court nominee, Brett Kavanaugh is not a committed textualist or originalist in the mold of the late conservative/libertarian luminary Antonin Scalia. (Textualism and originalism refer to the judicial philosophy of literally and consistently interpreting the texts of laws and the Constitution, respectively, without trying to bring about preferred outcomes.) Kavanaugh is, as Democrats so frantically allege, a conservative – and his record does indicate a tendency toward conservative outcomes. As opposed to proponents of textualism such as Gorsuch, Scalia and Robert Bork, Kavanaugh has demonstrated little nuance when it comes to application of the law. (By contrast, he does possess an occasional moderate streak which he infrequently wields to effect nuanced outcomes in cases of sensitive nature.) Kavanaugh was a partisan Republican before his ascendance to the bench, and he’s given us no reason since then to assume that he’s changed in that regard. Personally, as a textualist/originalist first and a conservative second, I would have preferred to see Trump nominate fellow Supreme Court finalist Raymond Kethledge, an equally qualified jurist who is a more devout student of textualism.

So Democrats aren’t wrong about Kavanaugh’s conservative philosophy. Still, they are displaying a striking degree of disingenuousness as they so strenuously insist his partisanship is the problem. This is because Democrats have exhibited no qualms about voting for manifestly ideological Supreme Court nominees in the past – as long as such nominees were of the left-wing persuasion. Of the four Democratic appointees currently on the Supreme Court (Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan), only Breyer and (rarely) Kagan have shown any hints of nuance in their decisions. For the most part, Ginsburg, Kagan and Sotomayor have ruled as outcome-oriented, unabashedly liberal jurists, with little if any regard for the Constitution and the rule of law seeping into their toxically counter-Constitutional judicial opinions. Yet Democrats unanimously voted to confirm all three, with the sole exception being a (since-retired) conservative Democrat from Nebraska who voted against Kagan. Democrats’ assertion that they can’t support ideological judges is laughable in the face of all the ideological judges they’ve regularly voted to confirm. It’s not partisanship they despise – it’s conservatism.

Brett Kavanaugh is no Gorsuch. He’s certainly no Scalia. And he doesn’t even hold a candle to Raymond Kethledge, who would have been a substantially superior choice. Judge Kavanaugh certainly isn’t who I would have nominated. That said, Kavanaugh is a solid choice who can most likely be relied upon to stand for restricting the government to its Constitutionally-intended role, scope and size – and (more often than not, at least) upholding Americans’ Constitutional rights and liberties.

Recognizing that not every justice is going to be a legal giant who contributes to the revitalization of textualist thought as Antonin Scalia so radically and brilliantly did, I unreservedly support Brett Kavanaugh’s nomination for the Supreme Court. He isn’t perfect, and I don’t expect his record on the Supreme Court to be perfect either. But he will almost certainly be a voice of sanity, common sense and reason on the nation’s highest court – which, in these troubling times of political and cultural turbulence, is really the most I dare hope for.

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3 COMMENTS

  1. It seems rather obvious that even a nomination of Merrick Garland by Trump would have elicited the expected (and, likely, pre-recorded) talking points of condemnation from the Dems. Further, whereas often the partisanship is equally reflected on the other side, a look at recent and not-so-recent history proves that the Republicans have shown much more deference and respect to liberal Democrat nominees than vice-versa.

  2. Actually, I would take a conservative over a textualist any day. But I will agree with the point that they were both decent choices and a shout out to Trump for making a respectable choice.

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