Democrats threw everything they could at Judge Brett Kavanaugh to keep him off the Supreme Court – including uncorroborated allegations about sexual misconduct from over three decades ago that he vehemently denied – but their effort failed Saturday when the Senate voted 50-48 to confirm his appointment and make him Justice Kavanaugh.
This is a major victory for President Trump, Senate Majority Leader Mitch McConnell, R-Ky., and conservatives who believe the Supreme Court should faithfully interpret the Constitution based on its original understanding. More importantly, it’s a victory for the American people, because Kavanaugh is an outstanding jurist who is superbly qualified to sit on our nation’s highest court.
Kavanaugh ’s judicial philosophy will benefit the Supreme Court, our political system, and our nation – a factor that Democrats conveniently tossed aside in their quest to turn his confirmation into a raucous sit-in on sexual misconduct.
Progressives were right to fear Kavanaugh’s nomination. But he will not haunt them because of his views on abortion, race or gay marriage. Instead, his real threat to modern liberalism comes because of his hostility to the wrongheaded progressive vision of technocratic government run by insulated bureaucrats and protected by deferential judges.
As a judge on the U.S. Circuit Court of Appeals for the District of Columbia, Kavanaugh has written almost no opinions that centrally address abortion, gay marriage, or race – the issues the Democratic Party focuses on when denouncing Republicans.
Critics scoured Kavanaugh’s work for Independent Counsel Ken Starr’s investigation that led to the impeachment of President Clinton and as a White House official in the administration of President George W. Bush. But they couldn’t find much on his views regarding abortion rights or affirmative action.
Like both Republican and Democratic nominees to the high court for the last 30 years, Kavanaugh refused to answer any senators’ questions during his confirmation hearing on these or any specific issues that might come before the Supreme Court.
Democrats’ obsession with the privacy rights used to justify legal abortion and with sexuality caused them to ignore the real threat to progressivism right before their eyes. Kavanaugh has openly attacked the very foundations of the 20th century administrative state, which created a virtual perpetual motion machine for progressive government.
The secret to progressivism lies in its distortion of the original design for lawmaking created by the framers of the Constitution. As James Madison described it in Federalist 51, the Constitution deliberately creates a difficult obstacle course for any new law. An identical bill must pass two separate houses of Congress – each one elected by different constituents at different times – and then receive presidential approval.
The framers of the Constitution expected that federal laws would be few and far between, with the states providing most of the direct regulations in daily life.
“In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments,” Madison argued. “Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself.”
But during the Progressive Era at the turn of the last century, American political leaders decided that the Constitution had become obsolete. They didn’t announce they were junking the Constitution, of course, but their actions spoke louder than their words.
The Constitution’s antiquated structures of federalism and the separation of powers, President Woodrow Wilson believed, could not keep pace with a modern industrialized economy and nationalized society.
Wilson’s solution, later perfected by President Franklin Delano Roosevelt’s New Deal, called for Congress to delegate broad swaths of lawmaking authority to federal agencies, which it would make independent from presidential control and judicial review.
This was a truly radical and revolutionary concept never envisioned by the men who wrote the Constitution. If someone had proposed this idea during the process of writing the Constitution his views would never have received serious consideration.
But instead of being true to the vision of the framers of the Constitution, progressives replaced the framers’ system of the rare, specialized federal law with an engine that pours out a constant stream of regulation unencumbered by the limits on Congress’s powers.
It is this system that Kavanaugh will directly challenge from his new vantage point on the Supreme Court. As an appeals court judge, for example, Kavanaugh found that the Consumer Finance Protection Bureau violated the Constitution because it vested too much legislative and executive power in its director.
Kavanaugh has criticized the Chevron doctrine, which requires the courts to defer to agencies in their reading of federal law, rather than to use their own judgment – a principle that has accelerated the transfer of power from Congress to unaccountable bureaucracies.
Even though it strikes at the heart of 20th Century progressivism, Kavanaugh’s campaign to tame the administrative state might provide common ground for Republicans and Democrats.
If Justice Anthony Kennedy – whose retirement created the opening for Kavanaugh’s appointment – stood for anything, he stood for an unjustified supremacy of the Supreme Court over the most controversial social questions.
As Kennedy put it in an unusual joint opinion in Casey v. Planned Parenthood in 1992, which upheld Roe v. Wade – the 1973 decision that legalized abortion nationwide – when the Supreme Court decides a constitutional question it thereby “calls the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution.”
Whatever the Supreme Court might say, the Constitution is the supreme law of the land – not judicial opinions. Each branch of government has a right to interpret the Constitution independently in the course of carrying out its unique constitutional duties. Congress should not pass unconstitutional bills, while presidents should not enforce unconstitutional laws.
But the Supreme Court’s expanding control over more issues like race, religion and sexuality has only amplified the political polarization and importance of high court nominations.
Kavanaugh’s quest to make bureaucracies politically accountable could provide the opportunity to restore the other branches to their rightful roles in constitutional interpretation.
Now Kavanaugh and his new Supreme Court colleagues may embrace a more diverse approach to constitutional interpretation – one that looks to many actors, institutions and sources for meaning. The newest justice could join other conservatives on the high court – such as Justice Clarence Thomas – who have sought to restrain judicial activism from supplanting the political process.
Liberals may fear a judiciary filled with President Trump’s appointees, but they might end up favoring a new justice who doesn’t believe that the Supreme Court is the font of all wisdom.
In fact, all of America should welcome a new justice who rejects judicial supremacy and demands a return to the modesty that governed the Supreme Court for much of its history. Our nation will be better off as a result
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