As the Senate begins their process of advice and consent for Judge Brett Kavanaugh’s nomination to the Supreme Court, we would be well-advised to remember what conservatism actually means in the context of Article III of the Constitution. Although many conservatives have endorsed Kavanaugh, others have expressed disappointment over the president's choice mainly because of a perceived loss of a guaranteed conservative majority.
But is that really true? What do we really mean by "conservative majority"? In the context of the Supreme Court, this isn’t a political question. We are a nation of laws, not a nation under rulers. Conservatism means we are conserving something — our Constitution as our rulebook. In order to fairly debate and discuss policy and especially to fairly keep government within its limited constitutional margins, we have to have fair and impartial umpires. This is the idea of a separation of powers and checks and balances.
Having a conservative majority is beneficial to all parties, whether Congress is majority Republican or Democrat, or whether the president is Donald Trump or Barack Obama. A conservative majority is the only way to ensure fairness and true equal protection under the law.
The only reason liberals don’t want a conservative majority on the High Court is because they have been playing a rigged political game for decades. When you have the umpire in your corner like they clearly did with Justice Kennedy willing to throw out the Constitution on social issues, there is zero incentive to change the umpire. It’s ironic that liberals were angry at Kennedy’s retirement from a life-tenure and then immediately called for term limits.
So, my question is why conservatives preferred Amy Coney Barrett to Kavanaugh if the goal is a genuinely conservative majority? In full disclosure, I preferred her candidacy too, but not because she is a woman, a mother of seven, has a child with special needs, or would "clearly" vote religious liberty. None of these things are relevant to the oath of office, duty, and responsibilities of a Supreme Court justice or "judicial umpire." If I’m a passenger on an airplane, I really don’t care whether the pilots are male or female, their marital status, whether they have kids, or what sports team they prefer. I care about whether they can be trusted to land the plane.
I preferred Barrett because I am convinced through her wide body of published work that her judicial philosophy is sound and she is an originalist. This isn’t to say Kavanaugh is not sound or fair, but when faced with a list of 25 great options, some kind of ranking needs to be established. But I also purposefully didn’t disclose my personal ranking system prior to the nomination. This is because, as I wrote shortly after Kavanaugh’s nomination was announced, the president really couldn’t go wrong as he had only good options.
Despite my own preferences, I’m disappointed in conservatives who are grumpy about the president’s pick because Kavanaugh may not give "us" what we want, like apparently desiring a judge that would "clearly inflame the culture wars." This idea that we should want a justice who will "vote for us" is a line from the progressive liberal playbook, not conservatism. I’m not interested in a justice that will vote partisan politics, whether or not his or her politics happen to agree with mine. We should no more want a Democratic activist judge than a Republican activist judge. And the thing is, a truly conservative judge would protect religious liberty, freedom of speech, and life, liberty, and individual rights for all anyway, because the Constitution requires it.
This doesn’t mean that conservatives need to just get in line and accept Kavanaugh’s nomination merely because he is the nominee from a Republican president. We have genuine questions, and that’s what a proper, well-focused confirmation hearing is actually for. As I discussed with Andrew Klavan this week, I would love for the Senate to ask Kavanaugh about his legal philosophy and substantive questions about how he understands stare decisis, how he views balancing a government’s compelling interest with an individual’s fundamental right to free exercise of religion, and other constitutional law related issues.
I’m not interested in whether he is a perfectly sincere orthodox Catholic, that he’s known as “Coach K,” whether he prefers Coke or Pepsi, or that he’s a great carpool dad. The Senate doesn’t have to fangirl Brett Kavanaugh, and neither does the conservative base. Despite President Trump’s reality TV credentials and showmanship, this isn’t an episode of "The Bachelor." The Senate simply needs to be satisfied that Judge Kavanaugh will be a fair and impartial jurist, which is an objective standard. The rest is secondary.
I have every hope that through his Senate hearings Judge Kavanaugh will show why he will protect the "crown jewel" of our republic. Let’s give him that opportunity, fairly.
Jenna Ellis (@jennaellisJDFI) is director of public policy at the James Dobson Family Institute. She is a constitutional law attorney, radio host, and the author of The Legal Basis for a Moral Constitution.