Even before President Trump announced his choice of Judge Brett Kavanaugh to replace retiring Justice Anthony Kennedy on the U.S. Supreme Court, the battle against his confirmation by the U.S. Senate already began. Adhering to the “resistance” mentality of the Democratic Party, its bigwigs actually preempted the president in the run-up to the announcement by publicly challenging those on Trump’s list of possible nominees, all of whom were vetted and approved by conservative think tanks. Indeed, we suspect the looming confirmation battle will probably have an air of “fill in the blanks” about it.
Of course, both the Republicans and Democrats understand what a Justice Kavanaugh will mean. Generally speaking, Kavanaugh will likely be a far more reliable conservative vote than Justice Kennedy was. The latter, though nominally a conservative-minded jurist, often voted with the four members of the liberal wing of the Supreme Court on such hot-button issues as the redefinition of marriage so as to include same-sex unions.
The refrain we’ve heard from such leading Democrats as Senator Chuck Schumer is that Trump’s list of nominees comprises those “outside the legal mainstream.” However, what he and his colleagues invariably fail to mention is that the very progressive policies and laws Senator Schumer and other Democrats now tout as mainstream were insinuated into the American political and judicial systems by virtue of their success in turning ostensibly political and policy issues into legal ones which the courts – which became the legislatures of choice, albeit unrepresentative ones – proceeded to decide by judicial fiat.
One of the key areas in which Judge Kavanaugh – given his conservative bent and judicial writings – might be expected to differ from Justice Kennedy is the clash between religious practice and statutorily-granted rights (e.g., the opposition of religious employers versus the Obamacare requirement that employers provide contraceptive services to employees). Certainly, he would differ in this regard from a Justice Merrick Garland who was unsuccessfully nominated for a Supreme Court seat by President Obama during the last months of his presidency.
The context of all this should be kept in mind. In large measure, any judicial rollback of “progressive” judicial precedent would be in sync with the discontent that propelled Trump to victory in 2016.
It is sad that the Supreme Court and lower courts have departed from applying basic principles to particular facts and have become vehicles for setting essentially partisan policy. But the Democrats started it, and hopefully a solid conservative majority will apply the breaks.