The early verdict is now in, and Justice Brett Kavanaugh is off to a very slow start. He has now had a veritable slew of rulings that ought to offend the sensibilities of judicial conservatives. At various times since ascending to the highest court, Kavanaugh has now been positively wobbly on issues ranging from Planned Parenthood funding to capital punishment to criminal defendants’ rights to products liability to antitrust liability. While we have a small total sample size, we now have a sufficient breadth of indicia so as to, at minimum, sound an early alarm. As a rule of thumb, if a Republican judicial nominee votes this often against conservatives’ jurisprudential lodestar, Justice Clarence Thomas, then there is likely something seriously wrong.
But as I argued on Monday, Kavanaugh’s squishiness was so eminently foreseeable. The great irony to the Left’s vile, personally vindictive, morally destructive, all-hands-on-deck, scorched-earth campaign to destroy Kavanaugh the man was always that Kavanaugh the jurist has always been a jurisprudentially moderate Republican judge. A longtime GOP establishment golden boy with lifelong inside-the-Beltway credentials and Bush White House alumnus status, Kavanaugh has always been best described as “Karl Rove in a robe.” It was certainly no aberration that Kavanaugh was the federal appellate judge who took it upon himself to craft the legal roadmap to uphold the Obamacare “tax” mandate.
In short, it is misguided to ascribe Kavanaugh’s slow start to some desire, post-character assassination campaign, to grovel before and make amends with the Left. Kavanaugh is not betraying his true self in a ham-handed effort to curry favor with what Andrew Breitbart famously dubbed the Democrat-media complex. Instead, the reality is that this is simply who Brett Kavanaugh is. It brings me nothing but agony, but the reality is that those on the Left who fear that this presently constituted Supreme Court will overturn Roe v. Wade — I’m looking at you, Jeffrey Toobin — ought to not fear. Brett Kavanaugh, like fellow squish and Obamacare apologist Chief Justice John Roberts, is maybe a “safe seventh vote” to overturn Roe.
There are many lessons here for conservatives. Above all else, conservatives simply must eventually awaken to the blunt reality that our “irrepressible myth” of judicial supremacy in this country serves as both a one-way ratchet for political progressivism and an utterly ruinous sapping of the national citizen-statesman vitality that Tocqueville and countless others properly deemed necessary for salutary republican self-governance.
But in the short term, there is one lesson that conservatives — including but hardly limited to the powers that be in the White House counsel’s office and the Federalist Society alike — must internalize: Do not make any attempt next time at a “compromise” pick. Kavanaugh, who large swaths of the conservative legal community worked behind the scenes to oppose as the nominee last summer, was precisely such a pick. The lifelong D.C. insider, who previously clerked on the Court for infamous swing vote Anthony Kennedy, was picked not merely due to his elbow-rubbing and gallivanting with much of D.C.’s insular legal eagle “conservative” elite, but also as a proffered olive branch to both leftists and wary establishment Republicans who might have been turned off by a more fiery selection such as Judge Amy Coney Barrett or Sen. Mike Lee (R-UT).
But after the personal hell that Kavanaugh went through in the nomination process, there can be no doubt that such a capitulatory olive branch strategy is completely feckless. And after the slow start that Kavanaugh has had, along with the post-Neil Gorsuch nomination termination of the Senate filibuster for Supreme Court picks, it simply must be stated that there is now no justification whatsoever for those on the legal Right to squeamishly settle on anything other than the most rock-ribbed nominee available. To help those in the White House counsel’s office and the Federalist Society not repeat the Kavanaugh blunder, I have identified three broad criteria for which we ought to carefully vet the next Supreme Court nominee: (1) full-spectrum conservatism, (2) stiff resistance to the “Greenhouse Effect,” and (3) eagerness to aggressively correct course.
Hopefully, Brett Kavanaugh’s lethargic start will soon come to a close, and that he will emerge as a reliable ally of Thomas and Gorsuch. I am deeply, deeply skeptical, but I hope I am wrong. Regardless, conservatives — and yes, that means conservatives and not the pro-judicial supremacy libertarians who increasingly dominate the phony “conservative legal movement” — simply must do better the next time around.