Judging Brett Kavanaugh: Special Edition

(Bloomberg Opinion) -- As you’ve no doubt heard, President Donald Trump last night picked Brett Kavanaugh to replace retiring Supreme Court Justice Anthony Kennedy. We’ll have much more on this in our regular newsletter this afternoon, but for now here are some quick links to our first round of reactions:

“Enter Judge Kavanaugh. He resembles Roberts in some respects. He is comfortably ensconced within the Republican establishment, specifically its Washington, D.C., division. The resemblance in affect was noted before, when Kavanaugh was up for confirmation to his current job. The Washington Post reported in 2006 that Kavanaugh ‘is widely described as brilliant, affable and disarming, attributes that prevented Democrats from successfully demonizing Roberts.’

“After watching Roberts in action, though, Kavanaugh’s Republican-approved smoothness reads to the left like a stealthy way for a right-wing ideologue to get his way. And to portions of the right it seems like a sign that he won’t be a reliable ally when the chips are down.

“While Trump was selecting a nominee to replace the retiring Anthony Kennedy and conservatives debated the possibilities, they scoured Kavanaugh’s records looking for evidence of this weakness. They found some rulings that concerned them — but they read them as critically as they did because they came to them with the fear of ‘another John Roberts.’”

The True Test for Kavanaugh – Cass Sunstein

“Those on the left fear, and those on the right hope, that Judge Kavanaugh will prove pivotal to an assortment of new constitutional rulings: protecting gun rights, overruling Roe v. Wade, invalidating affirmative action, crippling the regulatory state, striking down the Affordable Care Act, and allowing people with religious objections to discriminate against gays and lesbians.

“Such rulings would, of course, take sides on issues that sharply divide the American people. It would be genuinely depressing if the public debate over Judge Kavanaugh, and the confirmation process, turn out to be focused on one question: How conservative is he, exactly?

“That’s a terrible question, because it ignores a crucial difference between two kinds of judges – a difference that cuts across traditional political lines.”

“For starters, it’s difficult to believe that anyone would switch their vote in U.S. Senate elections, much less U.S. House, gubernatorial, or other downballot races because President Donald Trump nominated Kavanaugh rather than someone else. Americans don’t normally vote based on policy. They certainly don’t vote on the differences between two conservative judges. Most voters won’t pay much attention to the court pick unless something very unusual happens in the confirmation process. 

“That doesn’t mean the nomination can’t have any effect.”


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