Justice Kavanaugh: Only good on paper?
Arnold Cusmariu writes:
Now that Judge Kavanaugh is Justice Kavanaugh, here are some potential issues of concern looking ahead. Let's hope conservative euphoria doesn't turn out to be unwarranted.
- How the other S.C. members will react in light of the controversy surrounding Kavanaugh's confirmation, especially possible grumbling by liberals Kagan, Breyer, Sotomayor, and Ginsburg that he's "tainted." The three women may well believe Ford and act accordingly on a personal level.
- Let's hope there won't be any "leaks" by clerks or other Supreme Court staffers, suggesting a "destabilizing effect" or some such. Chief Justice Roberts must continue to run a tight ship and enforce a "Vegas Rule."
- Whether Kavanaugh will bow to pressure Democrats and the left generally will exert (and already have) and vote as a Kennedy "centrist." Returning the balance on the court to the status quo ante is not what Trump intended, but there's no way to prevent it.
- Justices have "gone rogue" before. Justices Warren and Brennan, nominated by a conservative president (Ike), turned out to be liberals and moved the court in the wrong direction. Ike famously referred to Warren and Brennan as the two biggest mistakes he ever made. Let's hope Trump doesn't end up feeling that way about Kavanaugh.
- Kavanaugh said during his Senate confirmation hearings that he is an originalist. There's no way to know (or control) how he will decide what that means as Justice Kavanaugh. We shall see if his Senate testimony amounted to mere "talking points" designed to ensure GOP support.
- The Marshall Court long ago poked a finger in Congress's eye with judicial review, which over time eroded powers the Constitution conferred on the legislative branch. Kavanaugh can and should do something about this if he's a true originalist, but will he? Power is not easily given up.
Thomas Lifson responds:
These are reasonable questions in light of previous history of justices "growing in office" and undergoing the "Greenhouse Effect." But I believe that things are different in the Age of Trump:
Twitter video screen grab.
- All of the justices understand the presumption of innocence and due process. The liberals know that their own confirmations had no such tactics invoked, and that many Republicans obeyed the rules of comity that formerly operated. I strongly suspect that they all were unnerved by the spectacle on Saturday of a mob pounding on the doors of the temple-like building in which they work. They also understand that cries to pack the Court will destroy its standing as an institution above politics. Recall that before Justice Scalia's death, he and Justice Ginsburg were the best of friends, despite their entirely opposite ideology. It's called "collegiality," and it means a lot to all of them: it is a powerful norm.
- Other than Bob Woodward, few reporters have ever gotten leaks from SCOTUS, and for good reason. The law clerks, who are best informed, have a lot to lose, having, in then-Judge Kavanaugh's terms, "worked their butts off" to get to the top tier of their profession. One can't rule out anything, but this is not a factor the left can count upon.
- I think the opposite is far more likely, that having endured the vilest possible calumnies from the left, Justice Kavanaugh is steeled against their appeals. Having the New York Times splash all over its front page an allegation that he once threw ice at someone in a bar while in college, why would he care what these media write about him?
- President Trump stood by him when a lesser Republican would have asked him to withdraw. Kavanaugh knows this. Why would he sell out the man and the movement that stood by him at his lowest point?
- Justice Kavanaugh has won widespread admiration for his deep scholarship. Why would he toss aside that reputation? He has everything to gain by staying consistent.
- See answer #5, and consider that Justice Kavanaugh may well have three decades in which to incrementally accomplish this. He is hailed by conservatives and feared by leftists for his skepticism toward administrative law (law made up by bureaucrats supposedly on the basis of delegation by Congress). My own guess is that we may start seeing decisions scaling back administrative law, administrative subpoenas, and other abuses of the separation powers. But time will tell.