Barring something akin to a tsunami, Judge Brett Kavanaugh will, sooner or later, be confirmed as the newest Supreme Court justice. Elections have consequences. And so we wonder about the utility of the pitched opposition and hand-wringing over a conservative president appointing a conservative justice.
Nonetheless, last week, Democrats of all persuasions, including the Jewish Democratic Council of America, launched wide-ranging attacks on the Kavanaugh nomination — some, including Pennsylvania Sen. Bob Casey, even before the president uttered the nominee’s name.
What is unfolding is the equivalent of a holy war, complete with dire predictions of the consequences of Kavanaugh’s addition to the court being repeated by opponents with near messianic fervor. For example, JDCA posited: “If Judge Kavanaugh is confirmed, we are deeply concerned that he will serve as the swing vote on decisions that will turn back the clock on decades of social progress. Such decisions would directly threaten the values that we hold dear as Jews and Democrats, such as a woman’s right to choose, voting rights, separation of church and state, social and economic justice and environmental protection. The stakes could not be higher.”
The stakes in Supreme Court nomination battles are always high. But, the president gets to make the nomination, and the Republicans have the majority votes in the Senate to confirm the appointment. Still, while Republicans lament the Democrats’ outcry against the nomination of Kavanaugh, we must not forget that Republicans refused to hold even a single confirmation hearing on Merrick Garland, President Barack Obama’s pick to fill the seat of deceased Justice Antonin Scalia.
Reaction to the nomination within the Jewish community was mixed. Progressive groups raised flags about the pick, saying Kavanaugh’s record shows he would be a threat to reproductive rights and separation of church and state, while Orthodox groups were less concerned with abortion and gay rights, and were encouraged by Kavanaugh’s record on religious liberty. These differences are very much in line with the liberal-conservative divide that seems to have enveloped our entire country.
But what about Kavanaugh the man and the quality of his background, experience and judicial temperament? In that regard — whether you agree or disagree with his views — Kavanaugh unquestionably has the educational pedigree, the governmental and judicial experience and history of collegial success that are such important components of an influential court leader. Beyond that, Kavanaugh has an extensive judicial record after 12 years on the Court of Appeals for the District of Columbia Circuit, and senators will have the opportunity to engage him quite thoroughly on those writings.
Although Kavanaugh has a conservative record, it is sometimes difficult to predict what kind of justice a particular nominee will be. The Supreme Court has a long history of its justices veering from the ideology of the presidents who appointed them — most notably Chief Justice Earl Warren, a staunch Republican appointed by Dwight Eisenhower who went on to lead the court in landmark liberal decisions, including those mandating desegregation. Likewise, Kavanaugh’s mentor, the conservative Anthony Kennedy, was the court’s most recent swing vote, contributing to many of the significant decisions many Democrats are loudly touting today.
While Kavanaugh’s confirmation looks like a slam-dunk, how his presence on the court affects American law and society in years to come remains to be seen. PJC