President Donald Trump has made his Supreme Court pick: Judge Brett Kavanaugh of the D.C. Circuit Court of Appeals.
This pick has led Democrats to bouts of near-apoplexy. According to Democrats, Kavanaugh represents a harbinger of death and destruction. Of course, Democrats would have said the same about any candidate nominated by Trump. The Democrats’ official Twitter account issued a dire warning: “A vote for Kavanaugh would be a vote to rip health care from American families and deny women their right to make their own health care choices.” The Women’s March issued a statement “in response to Donald Trump’s nomination of XX.” Naturally, that statement suggested that XX’s nomination would represent a “death sentence for thousands of women in the United States.” Protesters at the Supreme Court began chanting against an unnamed nominee before Trump even picked Kavanaugh publicly.
Here’s the truth: Kavanaugh is a textualist judge who will adhere to the Constitution. But he’s also a gradualist. The chances of Kavanaugh and Chief Justice John Roberts voting to overturn Roe v. Wade are slim to none. It’s far more likely that the two of them form a new minimalist center to the court, gradually paring back overreaching Supreme Court decisions rather than destroying them wholesale. After all, Kavanaugh is the same judge who crafted the original logic stating that Obamacare was a tax rather than a fine — the same logic Roberts would use to uphold Obamacare against constitutional challenge.
But the left’s hysteria over Kavanaugh’s selection tells us a lot about what it expects from the Supreme Court: complete adherence to a Democratic political platform. For decades, we’ve heard that Republicans ought not use litmus tests to determine judges; for decades, we’ve heard that Democrats ought to apply open litmus tests to judges. In the view of the left, the Supreme Court isn’t the “least dangerous branch,” as in Alexander Hamilton’s memorable Federalist No. 78 phrase — it’s the most powerful moral oligarchy, establishing favored rights from a marble-gilded building in Washington, D.C., with the power of lifetime appointment to back its decisions.