When Neil Gorsuch’s Supreme Court nomination was pending Senate confirmation and there was fear inside the White House that the president might be waffling on him, the justice-in-waiting sent a letter to his taskmaster, as if to win back his graces and maybe avert a replacement nomination. “Your address to Congress was magnificent,” Gorsuch wrote to Donald Trump, the Washington Post reported in December, basing its account in interviews with 11 sources. “And you were so kind to recognize Mrs. Scalia, remember the justice, and mention me. My teenage daughters were cheering the TV!” No missive expressing devotion to a Republican president is complete without an exclamation point and a nod to the late, great Justice Antonin Scalia.
Brett Kavanaugh, Trump’s choice to succeed outgoing Justice Anthony Kennedy, also wasted no time in kissing the ring. “Throughout this process, I’ve witnessed firsthand your appreciation for the vital role of the American judiciary,” Kavanaugh declared Monday night, asserting facts not in evidence. With his benefactor looming behind him, he continued with this bit of sycophantic hyperbole: “No president has ever consulted more widely, or talked with more people from more backgrounds, to seek input about a Supreme Court nomination.”
Everything U.S. Circuit Judge Brett Kavanaugh has worked on in this life prepared him for this moment, and there was no way he was going to mess it up. From attending Georgetown Preparatory School with Gorsuch — they graduated two years apart — to later reuniting in the chambers of Justice Kennedy, for whom the two of them served as judicial clerks, destiny and deep fealty to Republican causes groomed Kavanaugh for such a time as this. Serendipity could soon find him, if his handlers play their cards right, alongside his high school classmate back in those marbled halls — a Washington institution conservatives have long sought to dominate and shape in their own image. Their greatest hopes of all these years — on seeing Roe v. Wade overruled once and for all, on weakening the administrative state, on making the president the lord of every corner of the Executive branch — now rest with Kavanaugh, who no one really doubts will be a faithful soldier. Just as no one really doubted that Gorsuch would play ball on the right wing’s nearest and dearest issues.
Consider Kavanaugh’s performative dissent in a court order upholding a lower-court ruling that cleared the way for a detained undocumented teen to end her pregnancy. During the emergency hearing in that case, which Kavanaugh presided over, he warned that he was wary of issuing a “sweeping constitutional ruling” — never mind that that wasn’t what his court had been asked to do. Over his protestations, the full D.C. Circuit, in due time, sided with the teen. Kavanaugh was not pleased. “The majority’s decision represents a radical extension of the Supreme Court’s abortion jurisprudence,” he complained, suggesting that noncitizens — who are very much entitled to the auspices of the Constitution, even when in custody — aren’t entitled “to obtain immediate abortion on demand.” Never mind that she’d already complied with all the requirements of Texas law. (In his defense, maybe the judge wasn’t aware that the government official overseeing minors in immigration detention is a religious fundamentalist who had taken it upon himself to dissuade pregnant teenagers from exercising any meaningful choice.)
In this and a number of controversies landing before his court, which holds significant sway over the executive branch, Kavanaugh seemed to have been performing for an audience of one: the Republican president who would one day appoint him to the highest judicial perch in the land. In his writings on and off the bench, he has embraced an unfettered view of executive power, supreme over strictures that may protect the government from itself, if not wholly from any meaningful judicial review. “Kavanaugh has been the creature and servant of political power all his days,” Garrett Epps, a constitutional scholar, wrote in The Atlantic. “It would be the height of folly to expect that, having attained his lifetime’s ambition of a seat on the Supreme Court, he will become anything else.”
The glaring exception, of course, is administrative agencies, where Kavanaugh, in tune with Gorsuch and the conservative legal establishment, has sounded amenable to exercising aggressive judicial oversight over what he sees as merely an amalgam of unelected bureaucrats trampling on our cherished liberties. But the freedom to breathe clean air? No deference should be afforded there, or any other area where the government has been delegated statutory authority, but where Kavanaugh’s conception of an unruly deep state makes it clear to him that the judiciary has the last word. He’s an “anti-administravist” in the formalistic sense where Steve Bannon may be in a Trumpian sense.
As sterling as Kavanaugh’s pedigree and credentials are, his confirmation won’t be a walk in the park. That James Bopp, one of the conservative legal architects behind the anti-Roe campaign was opposed to Kavanaugh is an interesting twist in a nominating process that has been beset by indecision. And don’t think for a moment that Chuck Grassley, the chairman of the Senate Judiciary Committee, will rush the confirmation process. A stickler for process with an abiding respect for Dianne Feinstein, the ranking Democrat in the committee, he won’t hold a vote until every senator is satisfied and every piece of paper in Kavanaugh’s voluminous record has been turned over and examined.
The going may get rough as we learn more about Kavanaugh — his paper trail, his connections, and exactly how the White House jockeyed to add him to Trump’s shortlist at the last minute. We’ll be getting a clearer sense of the man who seems likely not so much to fill Kennedy’s shoes as throw them out and walk the Supreme Court right to where conservatives want it to be. When Kennedy announced his retirement, I called it a surrender of sorts to Trump. Kavanaugh’s prime-time unveiling makes it clear that he’s picking up right where his former boss left off.
