Judicial revolution
Conservatives have been building a judiciary to their liking
President Donald Trump last week appointed D.C. Circuit Court of Appeals Judge Brett Kavanaugh to fill the vacancy on the Supreme Court created by the recently announced retirement of Justice Anthony Kennedy.
From a conservative perspective, Judge Kavanaugh is a very good pick. His decade-long record on the D.C. Circuit demonstrates that he is an “originalist” jurist, committed to interpreting the law and Constitution as written, as opposed to inserting his policy preferences into it. Originalism is what Republican presidents always look for, but there is a persistent fear that a nominee will go “rogue” on the court, siding with the liberal wing. This happened with George H.W. Bush’s appointment of David Souter back in 1990. A relative unknown, Souter quickly became a reliable vote for the liberals. That is not going to happen with Judge Kavanaugh. He is a known quantity.
Judge Kavanaugh will be more than a simple vote. He is an outstanding judicial thinker and a fantastic writer. This is useful in the long-term project of influencing national jurisprudence. Justices such as Antonin Scalia, William Brennan and Oliver Wendell Holmes had an effect on American law far beyond their votes in conference — for they could lay out clear, persuasive, eloquent reasoning in their opinions. The hope among conservatives is that Judge Kavanaugh can fill the void left by Scalia’s death.
The progressive nexus of interest groups is mobilizing to fight to fight Judge Kavanaugh’s confirmation in the Senate. But they stand virtually no chance of success. His credentials are so sterling that it is unlikely any Republican senators will vote against him. Moreover, five or so Senate Democrats face tough reelection battles this fall. At least a few of them will vote for Judge Kavanaugh. Barring some unforeseen revelation, he is all butassured of confirmation.
To date, Mr. Trump’s approach to the court has been truly remarkable. He has filled judicial vacancies at a lightning-fast pace, at least compared to his predecessors. And the caliber of nominee has been very high indeed. This is much to his credit. He knew that this was a priority of GOP primary voters, who were skeptical of his commitment to conservative jurisprudence. He promised to deliver, andhe has.
But more broadly, Mr. Trump’s success has to be credited to the broader, conservative legal community. The American right has taken seriously the project of vetting wouldbe appointments to the federal courts, making sure they are generally amenable to the ideas of judicial restraint and originalism that unite most factions on the right. It is due to the legwork of groups such as the Federalist Society and the Heritage Foundation that Mr. Trump can be confident in his appointments. And, in turn, Mr. Trump can choose such high-quality nominees for the highest court in large part because his GOP predecessor, George W. Bush, did an outstanding job placing judges on the district andappellate courts.
And credit (such as it is) must also be given to former Senate Majority Leader Harry Reid and President Barack Obama, who decided in 2014 to eliminate the filibuster for lowercourt judicial nominees. That strippedaway the power of the minority to block appointments to district and appellate courts and established the precedent for the GOP to eliminate it for the Supreme Court. Mr. Reid, Mr. Obama and the Democrats were somehow convinced that the GOP would not be able to acquire a majority in the Senate and/or retake the White House. Their error, borne of political hubris, was laid bare in November 2016. And the progressive causeis now paying the price.
We may be on the cusp of a conservative judicial renaissance. A lot depends on whether Republicans can hold the Senate in the upcoming presidential election. The odds favor them, but it is no guarantee. If they do, and if the Trump administration continues nominating high-caliber candidates at such a quick pace, then by the time his first term is over, roughly a quarter of the federal bench may have been appointed by Donald Trump.