LA Times Says Conservatives Have 'Reason to Worry' about Kavanaugh. They're Not Wrong
Supreme Court picks were hands-down the best part of Donald Trump's presidency, and he still screwed them up.
The single greatest outcome of Donald Trump’s presidency, the thing that most vindicated pulling the lever for him over Hillary Clinton in November 2016, was getting three of the five Supreme Court votes that would finally overturn Roe v. Wade after a half-century of judicially-insulated child slaughter. It’s been estimated that the state laws already allowed to take effect will save as many as 200,000 lives a year.
This is undeniably a point in Trump’s favor (even though he was little more than an intermediary for judges chosen by others, and had no idea how they’d actually rule on Roe). Unfortunately, however, the magnitude of ending Roe has had the side effect of short-circuiting a fuller assessment of his judicial selections, a messy subject yours truly has been screaming into the void about for years, on which plenty of people were already disinclined to dig much below the surface.
So maybe it shouldn’t be surprising that a helpful illustration of the issue came this week not from conservative media but from the Los Angeles Times, which details how, while delivering conservatives big wins on abortion, guns, affirmative action, and environmental regulation, Trump’s second appointee Brett Kavanaugh has also given the Left more than a few victories:
If the last year's term was any indication, staunch conservatives may have reason to worry about Kavanaugh. He voted most often with Roberts. And he voted more often with the court's three liberals than with Thomas, the most conservative justice [...]
A year earlier, Kavanaugh cast a deciding fifth vote to uphold the Biden administration's plan to require a COVID-19 vaccine for millions of workers at hospitals and nursing homes that receive Medicare and Medicaid funds.
As Kavanaugh noted, hospitals did not object to the requirement. Rather, the rules were challenged by 16 Republican state attorneys general.
Four other conservatives — including Trump-appointed Justices Neil M. Gorsuch and Amy Coney Barrett — dissented, contending hospital workers should not be required to undergo what Alito called "an irreversible medical treatment."
Kavanaugh also split from the conservatives when a federal judge in Texas ruled that Navy SEALs had a religious right to refuse the military's requirement of a COVID-19 vaccine, even when they were deployed on special missions.
Twice Kavanaugh played a key role in upholding Biden's immigration policies against lawsuits brought by Texas Republicans.
Kavanaugh (along with Barrett) has also voted against the Supreme Court taking up reviews of state-level Covid vaccine mandates, transgender restroom “accommodation,” Title X funding of the abortion industry, a Catholic hospital’s right to refuse gender “transition” procedures, and Christian business owners’ right to refuse participation in same-sex ceremonies.
If this rundown comes as a surprise to anyone reading this, blame the Conservative Infotainment Complex for deciding these developments were only worth a passing mention (if that) when they happened. Because the warning signs were readily apparent from the start.
Though largely ignored at the time (largely because the Right was too euphoric about having beaten a leftist slander and intimidation campaign to worry about little things like job qualification), Kavanaugh threw out red flags aplenty during his confirmation hearings, to the point where notorious liberal Republican Susan Collins announced she would confirm him specifically because she was satisfied he wouldn’t touch abortion or same-sex marriage, and that he (allegedly) “emphatically said ‘no’” when asked if being wrongly decided was a sufficient basis to overturn “long-established precedent.”
That assessment echoed Kavanaugh’s slobbering odes to the overrated and abused doctrine of stare decisis, which given the consequences of making a mistake about who to give nigh-irrevocable lifetime power should have been enough for the Senate to reject his nomination before anyone ever heard of Christine Blasey Ford. Obviously and thankfully, that bias did not manifest with Roe. But his testimony clearly did indicate a weakness in his judicial philosophy—a belief that other factors should sometimes trump the Constitution—that was inevitably going to manifest somewhere.
The above record cannot be explained away as isolated lapses of judgment, or unique particulars of certain cases producing disappointing-yet-understandable results. It’s a pattern speaking to deeper deficiencies. But don’t take my word for it; take the assessments of conservative stalwart Samuel Alito, who has faulted Kavanaugh and Barrett for “taking the easy out” instead of “bearing the criticism” that doing the right thing “would inevitably elicit”; and Neil Gorsuch (Trump’s best justice, though not without his own serious issues and warning signs), who accused the pair of attempting to “steer the Court around the controversial subject matter” instead of “muster[ing] the fortitude to supply an answer” to recurring controversies.
This was not a Bork-Kennedy situation, with a president forced to submit a compromise choice after at least trying to get a solid jurist through a hostile Senate. All three of Trump’s picks were approved by the Federalist Society, which was assumed to be a more-than adequate seal of quality, blessed by conservative personalities and activists, and ultimately rubber-stamped by a Republican Senate.
In other words, every major faction of the Right touching judicial nominations shares the blame. The problem predates Trump by decades, clearly wasn’t solved by the movement “experts” brought in to guide Trump, and just as clearly wasn’t helped by having a president with a turnip’s understanding of conservatism, originalism, textualism, and the history of Republican-appointed judges turning rotten.
The bad news is that most of the contributing factors to this mess are not easily uprooted—GOP senators who don’t care about conservative outcomes, are too lazy to undertake real vetting, or don’t want the heat of going against the flow; lobbyists concerned only with whether they can take credit for a short-term “win”; legal establishment hacks who attack anyone who dares to question their judgment; and grifters who care about nothing beyond a positive narrative for their chosen candidate.
The good news is, those forces can be rendered largely moot if the president ultimately responsible for nominating justices happens to be an actual conservative who knows the movement’s goals, passions, and frustrations with the judiciary because they’re his own goals, passions, and frustrations too. Who recognizes the qualities that make a Thomas and the warning signs of a Roberts from years of following the issue out of genuine concern. Who knows what to ask prospective nominees because he has a judicial philosophy on his own, not because he skimmed How to Conservative for Dummies.
If only someone like that was running for president right now...
As a consumer of conservative pundits, I must say that Mark Levin deserves credit for his skepticism about Kavanaugh. Very early in the rumored and actual nomination process, he pointed to Kavanaugh's comments on an Obamacare case as a danger sign. Kavanaugh's actions were before Roberts's ultimate decision. Levin's antenna is rightly attuned to sellouts from Bush types such as Kavanaugh. And he likes to refight the 1980 primary with Bush 41 and his supporters! (Last Bush legacy fiasco was Dana Perino at 2nd GOP debate, btw.)