Trump is a master showman. Capturing a prime spot on television and captivating Americans across the country to announce his Supreme Court pick, Trump has heightened the spectacle of the American judiciary. Judge Brett Kavanaugh, although his nomination was the centerpiece of the show, must demonstrate to Americans that he will be above the president’s show.
Kavanaugh has a long history as a judge on the U.S. Court of Appeals for the D.C. Circuit, where he earned a reputation as a solid conservative. His many years on the bench will give senators and their aides lots of material to pour over as they prepare for hard questions at confirmation hearings.
Although a staunch conservative, some of Kavanaugh’s rulings will likely give some Republicans pause as well. In his dissent in Seven-Sky v. Holder, a case challenging the Affordable Care Act, for example, Kavanaugh dissented but argued that the ACA itself was constitutional. His objection was on the grounds that a challenge could only come after the first penalties of the individual mandate had been paid as he viewed the individual mandate as a tax.
Kavanaugh’s many decisions and his long paper trail will lead to wrangling in the Senate. The result will be a nomination circus reducing the confirmation process to headlines and, in the process, undermining an evenhanded assessment of Kavanaugh’s work as a judge.
Of course, there are some things that Kavanaugh will need to explain to the American people by way of the Senate. In 2009, well before Trump’s presidential bid, he authored an article in the Minnesota Law Review that suggested that a sitting president should be immune from civil suits and criminal prosecution. Kavanaugh explained that “time-consuming and distracting” lawsuits and investigations “would ill serve the public interest, especially in times of financial or national security crisis.”
This law review article was likely based on his own experience with the Bill Clinton investigation as part of Kenneth Starr’s team. Although Trump likely viewed these arguments as a potential shield for the accusations he faces, the circumstances, as well as the gravity of the issues at hand, are markedly different than when Kavanaugh investigated Clinton.
It is unclear if Kavanaugh’s opinions on the subject would remain the same, for example, if Trump were to face criminal charges as part of special counsel Robert Mueller’s investigation into Russian meddling in the 2016 election.
Kavanaugh will find himself at the center of a circus over the coming weeks. Instead of losing himself in the media frenzy, Kavanaugh – known as a steady judicial hand — will hopefully demonstrate to the American people that to be a good judge does not mean being a prime-time celebrity.
The test of the confirmation process for Kavanaugh, however, will only be the beginning as the American Supreme Court has become the stage on which the nation’s most contentious battles play out.
