8 Things We Learned from Trump Picking Brett Kavanaugh for the Supreme Court


(1) Naming Brett Kavanaugh to the Supreme Court is the least Trumpiest thing Trump has done so far (tied with his appointment of Neil Gorsuch.) The often-erratic president followed a highly un-erratic path to this pick, outsourcing the vetting to groups such as the Federalist Society and working off a list of highly qualified, intellectually credible candidates. So we get a sterling pick for SCOTUS, from a White House that has in the past given us Seb Gorka, Anthony Scaramucci, and Omarosa. As Ross Douthat notes, at least on this one issue, “Trump has demonstrated that he’ll take his Trumpishness only so far.”

Rather than choosing a red-meat fight to entertain his base, he went with a candidate that the conservative legal establishment will embrace with enthusiasm (and relief).

(2) Naming Kavanaugh was the Bushiest thing Trump has done as president. No, we didn’t get Judge Janine or someone championed by Sean Hannity. Instead, Trump chose a veteran of the Bush White House and a Bush appointee, and (forgetting the unforgettable Harriet Miers fiasco for a moment), a judge very much in the mold of John Roberts and Sam Alito, the two George W. Bush appointees. And no, he’s not going to be another David Souter. That’s the point of having a list.

(3) A conservative court, if you can keep it. Asked what form of government the Constitutional Convention had devised, Benjamin Franklin famously replied, “A Republic, if you can keep it.” Conservatives are on the precipice of establishing a generations-long dominance of the court, which makes the question “What is a conservative?” even more pressing. What kind of a conservative court will it be? Will it be willing to restrain executive power? How aggressive will it be in asserting the separation of powers? Will it take expansive views of privacy? And will it uphold the principle that no one is above the law.

(4) Roe is not dead. Despite the super-heated hysterics from the left, it is far from clear that there are five votes to overturn Roe. Pro-life groups rightly see Kavanaugh’s appointment as potentially a big win, but it’s not clear that an institutional conservative like John Roberts would vote to overturn a precedent as deeply embedded in culture as Roe on a 5-4 vote, setting off the firestorm such a decision would cause. Instead, look for abortion rights to continue to be reformed on the margins, and religious conscience rights to be protected.

(5) Kavanaugh is widely respected across the ideological spectrum, but it won’t matter. Or at least it won’t matter as the partisans gear up for the political Armageddon of his confirmation fight. But before the magma flow of anti-Kavanaugh rhetoric begins, it’s worth noting that one of the nation’s most prominent liberal legal figures, Yale Law Professor Akhil Reed Amar is calling Kavanaugh’s appointment Trump’s “finest hour, his classiest move,” noting that the nominee “commands wide and deep respect among scholars, lawyers and jurists.”

Lawfare’s Ben Wittes, who has also been harshly critical of Trump’s approach to the rule of law, tweeted out that although he will have a great deal to say about the appointment in the coming days, Kavanaugh “is a scholarly and thoughtful judge, a genuinely ecumenical thinker, and an extremely fine person.”

Kavanaugh will be savaged anyway.

(6) Kavanaugh has a sleeper issue. The nominee has a voluminous paper trail and critics are already pointing out that Kavanaugh was the most outspoken of all of the candidates on the need to protect a sitting president from indictment. (Although he was arguing that Congress should take action, not that the Constitution precludes an indictment.) Democrats are already raising the prospect that he could be the swing vote in any case brought by special counsel Robert Mueller. Kavanaugh should take the opportunity to clarify his views and, if necessary, tell senators that he would recuse himself from any case involving Trump brought by the special counsel.

(7) Kavanaugh’s appointment does not pose a particularly difficult dilemma for Never Trumpers. The fruit of the rotten tree is not always rotten. While many reluctant Trump voters will see the Kavanaugh pick as more vindication of their decision to align themselves with the president, critics are in a different situation: they have to decide whether their opposition to Donald Trump means opposing him even when he gets it right. In Brett Kavanaugh’s case, this is an appointment they would have supported enthusiastically if had been made by a President Rubio, Cruz, Walker, or Bush. As Peter Wehner put it:

(8) Fred Barnes has pretty awesome sources. He called this shot five days ago.





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