‘Whatever it is, I’m against it.’ (Groucho Marx as Professor Wagstaff in Horse Feathers)
On Monday the New York City branch of the National Organisation for Women organised a grand rally for midday Tuesday to oppose President Trump’s nominee for the vacant seat on the US Supreme Court. There was one problem: they didn’t know who it was going to be. But that didn’t worry them. Like Professor Wagstaff of Huxley College, whoever it was, they were against him or her.
Shortly after the announcement that the nominee was Brett Kavanaugh, the affable New York Democratic senator and minority leader Chuck Schumer joined the fray. As sure as eggs were eggs, he said on CBS, Judge Kavanaugh would vote to overrule Roe v Wade, set back abortion rights decades, repeal the right of Americans to insurance for pre-existing conditions under the Affordable Care Act, roll back LGBTQ equality, and protect the President against any legal attacks on him. But there was an awkward problem here too. This was all speculation. There is no indication – none – that the judge intends do any of these things. But that didn’t faze the senator. Hadn’t the President made the nomination after consulting members of the Federalist Society and the Heritage Foundation, and hadn’t the judge written an article in an obscure law journal nine years ago, roughly when Obama was being elected, saying that Presidential immunity might be a good thing? QED.
A third vignette from the madhouse that is much of US politics these days. Democratic lawmakers lined up after the choice with the refrain ‘He can’t be trusted’. Couldn’t be trusted, that is, ‘to safeguard rights for women, workers or to end the flow of corporate money to campaigns’. Now, it’s all very well wanting a judge who can be trusted to be impartial and dispassionate. But when it comes to how he will interpret the law (and most of a Supreme Court justice’s work is concerned with the ordinary law and not the Constitution), that’s rather different. If he can’t be ‘trusted’ to produce decisions a particular political crew want, some people – though not apparently Democratic activists – might regard that as a distinct plus.
All this shows one common thread. The Democrats are desperate. If they could have found a handle on Kavanaugh you can bet they would have; but they didn’t. Once again it is hard to avoid concluding that they have been comprehensively outplayed by the President. Indeed, to add to their misery, Donald Trump has the bonus of being able to point to criticism from one conservative pressure group, in the shape of the American Family Association, that his choice isn’t conservative enough, and to the grudging admission of one law professor at Yale, normally a bastion of progressive thought, that he has probably got this one right.
Let me explain further. There were three serious candidates for nomination: Judges Raymond Kethledge, Amy Barrett and Brett Kavanaugh. Choosing either of the other two, although they are both admirable, would have caused difficulties. Judge Kethledge recently made an honest and correct, but incautious, speech to students laying into the excesses of the administrative state. Amy Barrett would have been equally excellent, but she is a highly devout Catholic who doesn’t hide her beliefs; in particular, she has made her views about abortion and contraception clear. She has been equally communicative on matters such as the Affordable Care Act. Practical politics, given the 51-49 split in the Senate and two Republican female senators recalcitrantly liberal on abortion, unfortunately had to rule her out. She’ll have to wait for a more satisfactory balance of power and another conservative vacancy on the Court.
Hence Trump rightly chose the third. Judge Kavanaugh is a competent, clever, patrician Beltway insider, with bags of discretion and caution, and the ability to survive in the political snake-pit. He’s also lucky to have sat in a court that rather rarely hears political hot-button issues, so he’s had fewer opportunities to build up form. True, some might try to smear him as a constitutional ‘originalist’. But now people increasingly realise there must be a limit to reading values into the Constitution that aren’t explicitly stated but happen to mesh with whatever political fashion happens to be in vogue. Admittedly, this gave the US Roe v Wade (a progressive shibboleth which we explained on TCW a short time ago), and more recently gay marriage. But the Dems are also uncomfortably aware that these attitudes also gave it the emasculation of Franklin Roosevelt’s legislation in the name of an apparent constitutional implication in favour of free enterprise. It is thus going to be very difficult to find anything convincing to say about someone whose attitude to interpreting the Constitution is one of cautious exegesis rather than bold extension.
What Judge Kavanaugh will do if and when appointed is not set in stone. He is pretty clearly a man with a sound instinct against using the Constitution as a means to promote social activism; there is good reason to hope he may move at least towards limiting Roe v Wade. On this we shall have, as with all good judges, to wait and see. (It is worth remembering that Anthony Kennedy, supposedly a conservative justice, was remarkably liberal on matters such as abortion and gay equality). But for the moment, the President has to be given close to top marks for the way he has handled his first two Supreme Court appointments. He is likely to get the backing of the Senate for this one, and he deserves it.