Conservatives have trust issues, and it is completely understandable.
Republican presidents consistently overpromise and underdeliver on their judicial nominees, leading to conservative nightmares like Planned Parenthood v. Casey where three supposedly originalist justices conspired to invent an imaginary right to privacy. And regular disappointments like those have made conservatives a distrustful bunch.
They worry that behind the fresh face of the latest judicial nominee lurks the next Anthony Kennedy or, worse, the next David Souter in disguise. It explains the various debates over the qualifications of Judge Brett Kavanaugh.
[Also read: Trump interviews four possible Supreme Court candidates]
Kavanaugh was part of the judicial expansion pack, the five judges added to President Trump’s original list of potential Supreme Court candidates. A Yale Law degree, a stint in the Bush White House, and more than a decade on the U.S. Court of Appeals for the District of Columbia make him prestigious. A mix of paranoia and legitimate concern make him controversial.
Multiple Republican Senate aides worry to the Washington Examiner that Kavanaugh could disappoint conservatives by signing on to the Left’s past extraconstitutional inventions. Just as many of his clerks bristle at that accusation. Publicly, two issues stand out.
Over at the Daily Wire, Ben Shapiro observes that Kavanaugh hasn’t been as strong as possible in his refutation of the “Chevron deference,” the principle that gives the executive broad leeway in setting rules. Shapiro’s argument drew a respectful rebuke in National Review from Ed Whelan, who cited chapter and verse from Kavanaugh’s decisions. Certainly, Whelan wrote, Shapiro couldn’t be citing the same Kavanaugh who once sneered at Chevron as “an atextual invention by courts.”
Another illustrative spat broke out over at The Federalist between Christopher Jacobs, one of the preeminent anti-Obamacare voices on the Right, and Justin Walker, a current law professor and former law clerk to both Kennedy and Kavanaugh.
Jacobs accuses Kavanaugh of cultivating the legal theory that Chief Justice John Roberts would use to declare the individual mandate a tax and, therefore, constitutional. He points to an almost 50-page Kavanaugh dissent in the D.C. Circuit, opining about Obamacare in light of the 1867 Anti-Injunction Act, which precludes the court from considering the constitutionality of taxes in court. With that dissent, Jacobs concludes that Kavanaugh “wrote a roadmap for saving Obamacare.”
Prof. Walker responded and dismissed Jacobs as too cute by half. His old boss wasn’t trying to save Obamacare, he writes; he was trying to explain that “Obamacare could be challenged as unconstitutional but that a federal jurisdictional statue required such a challenge to be brought in the future.”
Walker says that Kavanaugh did create a roadmap for the Supreme Court, more specifically a constitutional exit ramp for “the Supreme Court dissenters, [J]ustices Antonin Scalia, Anthony Kennedy, Clarence Thomas, and Samuel Alito.” And how does he know? Walker was serving as a law clerk when the decision was handed down.
Those are just two spats over two disagreements. There are many more that more legal minds can, and have, explored. But conclusions, no matter how well-argued, are hard to come by, and conservatives have been hurt too many times to just trust them. That psychology creates a political problem.
While conservatives waver, liberals are digging in. They’ve seen Kavanaugh’s nomination before, and they opposed him for more than three years in the Senate in 2003. It’s going to be an ugly fight no matter what, and if Kavanaugh is the nominee, conservatives may not have the same fervor as the Left.
