Considered an eminent and “brilliant” conservative jurist, Judge Kavanaugh, age 53, has nevertheless prompted a few qualms from some conservatives. David French has said his prospective nomination would be a home run, but not a grand slam. Read this in The Federalist. The gist of the criticisms is that while Judge Kavanaugh usually ends up ruling correctly, he sometimes gets there in questionable ways. He has agreed that contraception is a legitimate government interest, even as he supported Hobby Lobby’s case against the Obamacare mandate. He has agreed that people offended by religious expressions have standing to bring lawsuits, even though he rules for religious liberty. There is some fear that he may be too respectful of precedent.
And yet Judge Kavanaugh also has strong defenders among conservatives. Read Justin Walker’s response to the Federalist article.
But with Judge Kavanaugh’s impeccable qualifications, he is probably the easiest candidate on President Trump’s short list to get confirmed. Even with the Republican majority in the Senate, the confirmation process will be a battle.With Sen. John McCain back in Arizona battling cancer, a single Republican defection could kill the nomination. Two Republicans, Sens. Susan Collins of Maine and Lisa Murkowski of Alaska, have said they may not vote for a nominee who would overturn Roe v. Wade.
Then again, there are two pro-life Democrats from states that voted for President Trump who might vote with the Republicans: Sens. Joe Manchin III (D-W.V.) and Joe Donnelly (D-Ind.). Another senator from a pro-Trump state, Sen. Heidi Heitkamp (D-N.D.), sometimes votes with Republicans.
Democrats have been planning how to stop President Trump’s nominee whomever he chose. Their strategy: frame the nomination in terms of “women’s health” and legalized abortion; stage nationwide protests; and lobby hard on the five Senators mentioned above.
But it will be a hard nomination to stop, and the Democrats have only themselves to blame. When they ruled both the Senate, they imposed the “nuclear option” of changing the rules so that appointments to federal judgeships may not be filibustered, so that a majority vote rather than a 60-vote cloture vote could approve a justice. Under that rule, Supreme Court justices could still be filibustered, but that changed when Democrats opposed Judge Gorsuch’s nomination, provoking the Republicans to remove the filibuster option for the Supreme Court as well.
Still, the outrage and indignation will be tuned way up, the rhetoric will be apocalyptic, and the Resistance will be out in force.
Photo: Judge Brett Kavanaugh by U.S. Court of Appeals for the District of Columbia Circuit [Public domain], via Wikimedia Commons