Kavanaugh won’t be trigger for a court lurch to the right

In the second year of his presidency, Donald Trump has become more and more willing to act Trumpishly rather than deferring to the official wisdom of his party. But with his second Supreme Court nomination, notwithstanding all the headfakes and reality-television atmospherics, Trump has demonstrated that he’ll take his Trumpishness only so far. It’s one thing to blow up the G-7 with trade wars and make nice with a murderous North Korean despot; it’s quite another to disappoint the D.C. conservative legal establishment. So instead of the dark horses who caught his eye or the female rising star his base and some noisy columnists kept touting, he circled back to the bestknown, deepest-résuméd, most-vouched-for choice, and gave us Judge Brett Kavanaugh.

Establishment choices tend to yield swift confirmations when your party controls the Senate, and assuming that no Lovecraftian horror lurks in his extensive paper trail, I would expect Kavanaugh to be confirmed narrowly but easily, with some skeptical abortion-related questions but little ultimate resistance from Republican Sens. Susan Collins and Lisa Murkowski. Because an important part of that paper trail was printed working under Kenneth Starr and George W. Bush, I would also expect some of the vulnerable Senate Democrats to feel more comfortable voting against him, citing his partisan political history, than they might have been against Amy Coney Barrett.

So expect a party-line vote or close to that to replace Justice Anthony Kennedy with Kavanaugh, and then expect a court that moves to the right in some sense, but not necessarily in the most predictable of ways. Kennedy was famous for his swing votes, but he sided with the liberals only on a particular set of cases, and Chief Justice John Roberts has been willing to play the swing vote in his own consensus-oriented, restraint-prioritizing way. So if Kavanaugh is even somewhat Roberts-esque in his approach, you could end up with a court that is more conservative but also more cautious than the Kennedy-era court.

And then even if Kavanaugh proves aggressive (and his appellate record suggests he might be), and even if he frequently joins Clarence Thomas on the court’s right flank, it’s easy to imagine the prudent Roberts becoming still more cautious and consensus-oriented in response. Which is why the wisest take on the overall direction of the Supremes is the one that concludes Jack Goldsmith’s recent analysis in The Weekly Standard: If you’re expecting a broad “conservative revolution” as opposed to a gentle rightward drift, it will take “a sixth or seventh conservative justice” to deliver it.

But of course neither the liberals most panicked by Kennedy’s retirement nor the conservatives who voted for Trump almost exclusively because of judicial nominations are focused on the general drift of the court; they’re focused on those hot-button cases where Kennedy advanced the causes of social liberalism, and on abortion above all. And here Kavanaugh’s elevation does promise to be a watershed — for the wider culture war if he (and Roberts) join Justices Thomas, Samuel Alito and Neil Gorsuch to overturn Roe v. Wade and Planned Parenthood v. Casey, and for internal Republican Party politics if he (or Roberts) imitate Kennedy and save abortion rights instead.