With Justice Anthony Kennedy’s retirement from the Supreme Court last week, public attention is focused on the potential successors for his seat. One name has emerged from President Trump’s list as a source of particular panic for the far Left — Judge Brett Kavanaugh.
Like clockwork, the Left’s cheerleaders in media have ramped up their attacks and scare tactics. As Mother Jones declared in an attempted takedown profile, Kavanaugh “would add a reliably conservative vote” to the court. Slate similarly sounded the alarm, referring to Kavanaugh as a “stellar Scalia clone” who is “very smart” and brings “impeccable credentials.” The Washington Post stressed that Kavanaugh “spent much of his career in the trenches of some of the country’s most polarizing political fights” before becoming a judge and issuing opinions that “fit squarely into Trump’s thinking” by “supporting presidential power and urging restraint of government bureaucracy.”
In the aforementioned Mother Jones profile, reporter Stephanie Mencimer also reminded readers that Kavanaugh is “a longtime active member of the Federalist Society” who, while in private practice, “filed a brief in a Supreme Court case supporting a New Mexico school district’s effort to maintain student-led prayers at football games” and defended the constitutionality of Florida’s “school voucher program that would direct public money to private religious schools.” As a judge, he has “made a name for himself as a staunch opponent of the Obama administration’s environmental agenda,” writing dissents “in cases involving the Environmental Protection Agency [that] often seemed to sway the Supreme Court,” and supporting “the Trump administration’s efforts to prevent a pregnant immigrant girl from obtaining an abortion,” she noted. Perhaps Kananaugh’s greatest error, in Mencimer’s view, is that he dissented from his colleagues’ decision to “uphold the constitutionality of the Affordable Care Act” — a decision that also provoked criticism from liberal pundit Jeffrey Toobin in the New Yorker.
As someone familiar with Kavanaugh’s record, I can confirm the far Left has reason to worry, but people devoted to the Constitution and the rule of law do not. His lengthy judicial record — spanning some 300 opinions over a dozen years — makes clear that he is truly committed to the constitutional principles of textualism and originalism. To cite just a few of his most notable opinions, Kavanaugh ruled against the structure of the Consumer Financial Protection Bureau and the Public Company Accounting Oversight Board, upheld a Second Amendment challenge against a ban on semi-automatic rifles, struck down campaign spending limits on nonprofits that ran afoul of the First Amendment, and upheld prayer at government ceremonies. Similarly, he has held government agencies in check by limiting their administrative regulations to their actual statutory authority. His rulings prevented illegal immigrants from voting in union elections, and prevented the evasion of immigration visa laws by employers trying to replace Americans with foreign workers.
While many on the Left prefer smear tactics to sound arguments, Kavanaugh follows the law and the Constitution wherever they take him. For example, he’s ruled for a criminal defendant in a case where the government violated the Fourth Amendment (a decision that was vindicated by the Supreme Court in an opinion authored by Justice Scalia) and he sustained a claim brought against an employer who used a racial epithet.
Judges aren’t appointed to lifetime tenure so that they can improve or undermine policymaking by Congress or state governments. That’s the job of elected officials. Good judges are responsible to see to it that the rules of the game, which were put in place by ratification, legislation, or amendment, are rigorously adhered to. The real beef the Left has with originalists like Kavanaugh is they expect judges to do the job that leftists don’t like — the hard work of convincing their fellow citizens to voluntarily adopt their radical vision for America. Instead of persuasion, the Left wants courts to force its vision down people’s throats. To the dismay of writers for publications like Mother Jones, their complaint isn’t with Brett Kavanaugh and his rulings, it is with the Constitution and the laws passed by Congress.
Horace Cooper is a contributor to the Washington Examiner’s Beltway Confidential blog. He is co-chair of Project 21 and an adjunct fellow with the National Center for Public Policy Research.
