This Is Trump’s Supreme Court Now and for a Long Time to ComeJuly 10, 2018
On Monday night, Donald Trump made what is sure to be one of the most consequential moves of his presidency, nominating Brett Kavanaugh for the Supreme Court. If he's confirmed, as expected, it will nudge the court from merely being right-leaning much of the time to serving as a conservative stronghold, maybe for decades.
This is the fulfillment of a nakedly cynical promise Trump made to social conservatives. In 2016, he campaigned relentlessly on the idea that he'd appoint right-wing justices who would roll back abortion rights. Trump might have spent his entire adult life cheating on his wives and telling Howard Stern he would have done Princess Diana—not exactly Christian behavior—but at least he had a Federalist Society–approved list of rock-ribbed conservative judges he'd promote if he got the chance. It gave a lot of uneasy Republican voters a reason to vote for Trump.
So while everyone was curious about the name in advance of Monday's announcement, it was clear there would be no surprises here. There will be equally few surprises when it comes time for Kavanaugh to drop the hammer on bedrock liberal causes as a fifth vote in some massive 5–4 decisions.
Kavanaugh had a long career as a Republican lawyer before becoming a judge. He spent time investigating the Clinton White House as part of Kenneth Starr's team, then worked for George W. Bush during the infamous Florida recount of 2000. (It was Bush who appointed him to the federal bench in 2003, though Democrats blocked him from taking the seat until 2006.)
More predictable than Trump's selection of Kavanaugh is the nominee's likely path from here. Republicans have a narrow majority in the Senate they can use to confirm him, and they may be able to squeeze a few red-state Democrats into backing him as well. It's going to be a tough confirmation battle with well-funded outside groups spending heavily, but Democrats don't have much of a chance of stopping the confirmation and are therefore looking at a grim future.
It's widely anticipated that Roe v. Wade, the landmark court case that legalized abortion throughout the country, will be overturned. As many as 21 states could ban abortion immediately (or almost immediately) after that ruling. But the court will have the opportunity to rule on a wide variety of cases and strip away protections many take for granted. Before the announcement, the Washington Post's Paul Waldman outlined how dark things could get:
Regulations on health insurance companies, say, to ban people from being denied coverage because of preexisting conditions? Sorry, that’s an infringement on the right of the companies to offer whatever products they want to consumers. Environmental regulations? Nope, that, too, is a restriction on economic freedom. Anti-discrimination laws? We can’t tolerate such a limit on freedom of speech and “religious liberty.” Reasonable measures to limit gun violence? No, the Second Amendment is virtually limitless. Limits on direct contributions to candidates? The court has already made a mockery of campaign finance laws meant to stop corruption, so why not just let billionaires hand politicians briefcases full of cash?
That might sound alarmist, but even before Kennedy's retirement, the Supreme Court had gutted regulations intended to fight political corruption, stripped away key components of the Voting Rights Act, chipped away at unions, and came close to striking down the Affordable Care Act (ACA).
In a Monday statement, Chuck Grassley, the Republican chair of the Senate Judicial Committee, said that while Democrats "are results-oriented and focus on the policy outcomes of judicial decisions," Republicans "want judges who rule according to the law and leave the policymaking to elected representatives." Trump in his nomination speech emphasized that he didn't care about the nominee's "personal views." Similarly, Kavanaugh said Monday night that judges "must interpret the law, not make the law."
This is a bit of obvious obfuscation that Republicans love to trot out—partisans on both sides denounce the court whenever it rules against them, as conservatives did when Chief Justice John Roberts preserved the ACA. More to the point, Kavanaugh holds the standard right-wing positions you'd expect. As a circuit court judge, he ruled that the Consumer Finance Protection Bureau's structure was unconstitutional, often sided against the Environmental Protection Agency, and disapproved of net neutrality. Whatever his principles are, they have him sitting on the conservative side of nearly every issue. (Social conservatives expressed some reservations about him because he wasn't quite as right-wing as some names on Trump's list, but there's no doubt about which side of the aisle he hails from.)
The largest question moving ahead is one that won't be answered for years. Assuming Kavanaugh is confirmed, the Supreme Court will remain firmly in conservative hands even if the Democrats sweep back to power in 2020. If that happens, will right-wing justices veto any progressive legislation that gets signed into law on the basis that it is an unconstitutional overreach? Some liberals are already sounding the alarm about the confrontation between the Supreme Court and the executive and legislative branches that would result.
It's possible that Kavanaugh, or one of the other conservative justices, will break ranks and develop less strident views. But that seems unlikely—the squishiest vote on the right-wing bloc is now Roberts, who is hardly a moderate or even a quirky occasional swing vote like Kennedy. It's Trump's court and it's going to be Trump's court for a while now. The most important thing about Kavanaugh may not be his mail-order conservative views or his way of thinking about cases but his age: 53. That leaves a lot of years for him to reshape America.
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