Questioning the man who would tilt the court

One justice can matter enormously; with the departure of Kennedy goes the usual swing vote, and with the arrival of Kavanaugh, if confirmed, the court will tilt to the right.

I t’s clear by now, the summer of 2018, the second summer of the Trump administration, that the nation’s future won’t be the same as its post-World War II past.

People who did not like where America was headed, people of means and some of principle, but also people with the idea that the country’s destiny is theirs to change, have succeeded in electing a president and are now on the verge of their ultimate goal of remaking the Supreme Court, the guardian of the Constitution.

The future will not always look as Donald Trump and his ascendant conservative allies are designing it. Nor will it look like the previous 60 years. It will be some new combination, centrist if we are so fortunate.

Into this kiln of the future come the Senate proceedings on Brett Kavanaugh, the president’s nominee to be the next justice of the Supreme Court. As a person, he has credentials of good character; age 53, he sits on the U.S. Court of Appeals for the D.C. Circuit, is married to a former personal assistant to President George W. Bush, has two daughters, has run twice in the Boston Marathon, lectors at his Catholic parish and does other volunteer work.

Indeed, if he weren’t a nominee, Connecticut’s two senators and Kavanaugh’s other critics would probably view him as an accomplished American with viewpoints different from theirs. However, to those who fear — with evidence from his past decisions and comments — that he would favor the overturning of Roe v. Wade, the dismantling of the Affordable Care Act, presidential immunity from prosecution, and limits on gun laws and consumer and voting rights, he represents a threat that can’t be ignored.

Elections matter, and the majority is on his side. Democrats in the Senate are sending a clear message that his confirmation hearing will be as rough as they can make it. We urge senators to ask whatever they want to know about his opinions, but not to block a vote.

Some senators, notably Charles Schumer of New York, have had a wary eye on Kavanaugh since he was part of the Bush legal team in the Florida recount that gave the 2000 presidential election to the Republicans. He served as White House counsel and staff secretary to Bush while awaiting confirmation of his appointment to federal court. That took three years, with Schumer a key player in the delay. There is no love lost there.

If Schumer was worried about Kavanaugh’s judicial principles, he has had time to watch them play out. Kavanaugh graduated from Yale College and Yale Law School before clerking for Justice Anthony Kennedy, the man he would replace on the Supreme Court. He is a favorite of the Federalist Society, a conservative organization that promotes judicial candidates who, like the late Justice Antonin Scalia, believe in “textualism” and “originalism” — basing decisions on the exact wording of the law.

Momentum for the appointment of like-minded judges intensified during the second Obama term, when Majority Leader Mitch McConnell kept the Senate from voting on the president’s Supreme Court nominee, Merrick Garland.

Stuffing the Supreme Court with presidential allies is a long-time practice, peaking under Franklin D. Roosevelt. The men — men only — who wrote the Constitution foresaw that in the way they structured the system of checks and balances. They gave the Senate the right of confirmation to increase the possibility that judges would be impartial and not beholden, and they allowed the Supreme Court enough justices to make it hard for one person to prevail.

One justice can matter enormously, however; with the departure of Kennedy goes the usual swing vote, and with the arrival of Kavanaugh, if confirmed, the court will tilt to the right. There is speculation that Chief Justice John Roberts would become the fulcrum on which close votes rest. All votes, it seems likely, will be close.

The demographics of the court would remain the same: six men, five of them white, and three women.

Whomever President Trump gets to appoint to the court, now and during the rest of his term, there is no putting the nation back into an old box. Women expect equality, formerly uninsured people are paying for health care; time and America march on. Senators, ask the hard questions, but do it with statesmanship, not personal animus. Set the groundwork for the future.