I thought I would add my initial thoughts on the nomination of Brett Kavanaugh to the Supreme Court, joining the often amusing carousel of speculation about the future that none of us can really see. But since I have started to read some hand-wringing from certain sectors of the pro-life community, and being that I have some amount of training in Constitutional law and am actually Catholic, I am now motivated to weigh in.
In the first place, I make the obvious point that none of us know until he is confirmed, casts votes, and writes opinions, whether he is Scalia or Souter– or that worst of jurists, Roberts or Kennedy or any other number of lukewarm, finger-wetting, can-be-gotten-to seekers of popularity inside and outside of the Court. Everything I write below should be taken with a very large grain of salt.
So, because we are by nature political animals and because we have the deep desire for justice for the unborn and for the beleaguered faithful Christians of our land, how do we analyze this choice by President Trump for the highest court in the land? And why does it matter?
The second question is the easy one, because ever since the Supreme Court’s very first unconstitutional power grab in 1803 (Marbury v. Madison, wherein Justice Marshall held that the Supreme Court had the power to declare Congressional acts unconstitutional and thus void at law) the Court sits as a super-legislature over our laws. At best, it excercises this power in the negative sense, striking down laws with which it does not agree. At worst, it “finds” constitutional rights that do not exist in the Constitutional text or any historical interpretation of state or federal power. Rights to contraception, abortion, and sodomy spring to mind. There are others. This position is well-settled, so it is pointless to dwell on it, but remember that the Constitution did not grant the Supreme Court this power and that things could have been different. But here we are.
To address the first question, we analyze this choice like we analyze other political questions of the day. Not knowing everything there is to know, we look to those in the arena in whose opinions we have learned to trust; we use our common sense; we look at the resume and qualifiations of the candidate and the man who nominated him.
There are two lawyers whose opinions I respect highly on matters of law and public policy, one from the Catholic perspective, and one from the secular political perspective: Christopher Ferrara and Ann Coulter, respectively. Neither is infallible, but both have very able minds, and experience and judgment in those areas. They both have made me feel as good as I can feel about this nomination.
Christopher Ferrara’s comments are here. His points about his record, temprament and the realities of the confirmation process are all spot on. Ann Coulter has been one of Kavanaugh’s most vocal advocates in the run up to the nomination, and points to his strong record on Second Amendment, immigration and nationality law, and religious rights. Her twitter feed, if you have any sense of humor at all, is almost must-reading. And she never pulls a punch.
But what makes some pro-lifers nervous, and hovering like Banquo’s ghost over this nomination, are three figures: George Bush, Donald Trump, and Amy Coney Barrett. As a prelude to discussion of these, I should point out that PRO-LIFERS SHOULD AWAYS BE NERVOUS. There is no money, no power, no respect and no personal gain for any judge or politician to stand for the unborn. The only pay-off is long-term: a healthier society in the long run, and more importantly, a heavenly reward. So we always stand in danger of traitors, quislings, Souters, Robertses, Romneys and the like. So yes, until Roe is overturned, we are on edge. All we can do is move the ball forward using the lights and tools we have.
George Bush gave us Alito, but also Roberts. The Roberts decision on Obamacare may be the single least excusable decision issued by any judge in the history of guilty man. Now, it is plausible that he was “gotten to” and under duress changed his vote at the last minute. He has young children, and there are indicia in the decision and the reaction of his colleagues when it was read that he changed his vote after the decisions were being written. So, he may not be a bad jurist, but in either event that decision was a blow to the rule of law. His father gave us Thomas, but also the execrable beta-male Souter. And Kavanaugh was appointed by W to the Court of Appeals.
Yet I don’t see Trump as another Bush. He is certainly not afraid of sticking it to his adversaries, and is not afraid to actually win. I soured on voting Republican a long time back because it seems that the GOP establishment had a vested interest in always being “just about to win”– but never wanted the pressure of knowing what to do afterwards. Trump isn’t that. Pro-lifers doubt if he is, deep down, pro-life. I don’t care. He acts on his pro-life promises. I’ve had enough of really pro-life politicians chickening out. I am fine with one who acts like he’s pro-life, because he said he would do so to get my vote. Trump has yet to let the unborn down. He gets all of the benefit of my doubts.
Kavanugh’s long record of opinions is a very good one. He is an originalist, he has decided important cases standing strong on the First and Second Amendments, and other issues. On abortion, yes, he followed the Roe precedent. That is what lower court judges are supposed to do. Should he have struck a blow and rule that Roe was wrongly decided? Yes. But I only submit that his statements about Roe say nothing, either good or bad, about his position on Roe as a Justice.
Which brings us to Amy Coney Barrett, already appointed by Trump to the U.S. Court of Appeals for the 7th Circuit, and in whom “the dogma lives loudly”. I think she would be a terrific Justice, and I was hoping it would be her. I trust her far more on abortion (THE MOST IMPORTANT ISSUE OF OUR DAY BY FAR), but she is an unknown on many other issues. Like I said, until we stop slaughtering babies everything else can hang. But there is some truth that the razor thin margin in the Senate, combined with pro-abort GOP losers like Collins and Murkowski, makes Barrett a dicier choice to actually survive confirmation. And I agree that when Ruth Buzzie Ginsburg earns her reward, our unfortunate identity politics makes selecting a woman a decent idea.
If Trump appoints three Justices, does it matter if Kavanaugh were number 2 or 3? And in the end, I have confidence in Trump playing the long game here that I wouldn’t have in most anyone else. You may recall I predicted a Trump electoral landslide in 2016. And though I have never bought the “blue wave” narrative in the midterms, the unhinged lunacy and evil of the left leave me convinced of GOP gains this Fall. Then nominate Barrett and watch them howl. There will be nothing in they can do.
Thus, I am happy with the Kavanaugh pick, though there is no guarantee with him or anyone else. God strengthen him and his family for good.