As Judge Kavanaugh closes in on joining the Supreme Court, I’m reminded of some thoughts I had when Justice Kennedy first announced his retirement. Kennedy had long been hailed as a “swing vote” because, while a nominal conservative, he frequently broke ranks to side with the liberals. Now some are voicing concerns that another Trump pick, especially in the form of Kavanaugh, will signal a sharp and even unprecedented right turn that will last for a generation: last week, NPR’s Domenico Montanaro opined that this pick will be “replacing the swing vote on the Supreme Court” and that “for the first time in 75 years or so, there would be a conservative majority on the Court.”
There’s some truth that Kavanaugh would pull the Court to the right, but only because he is himself so sharply conservative in his jurisprudence. But Kennedy’s reputation as a swing judge is in fact quite undeserved. Kennedy was a pronounced conservative, and his “swing” decisions — typically involving individual civil rights — can be better understood through his relatively unsophisticated fear of government encroachment against finely scoped individual freedoms. If Kennedy was popularly understood to be a check on the more aggressively conservative inclinations of the modern Court, that understanding was mistaken. And if Kavanaugh is confirmed to replace him, that will most likely just cement the conservative-leaning majority the Court has actually enjoyed for most of the last 75 years.
President Tump’s pick of Brett Kavanaugh to replace retiring Supreme Court Justice Anthony Kennedy has ruffled some feathers. For example, my Senator Patty Murray is on record opposing his nomination on two grounds: first, that by association with Trump he would overturn Roe v Wade if occasion permitted; and second, due to rebukes he made against the Roberts Court which decided it, he opposes constitutional sanction of ObamaCare. Another complaint in wide circulation is how it is well understood (though somewhat debated) that he would support Congressional action to shield sitting Presidents from civil lawsuits.
While those concerns are valid as far as they go, I’m worried that focusing on them is unlikely to prevail in derailing his appointment since, quite frankly, it isn’t clear that they concern a plurality of Senators. I believe that Kavanaugh’s long record of jurisprudence is independently disqualifying outside those narrow political parameters and more attention should be paid to his overall legal philosophy. Luckily efforts are being made to obtain the fullness of his public record, though powerful Senators are also trying — in some cases hypocritically — to block an open review.
Thanks to reporting from the Intercept, I was made aware of a fairly shocking decision that Kavanaugh handed down — on the very day Trump announced him as his pick — from the three-judge Appeals Court on which he sat. I think that decision is a telling vignette into Kavanaugh’s current judicial philosophy and temperament. It casts serious doubt on his candidacy for the highest court to say nothing of the risk it reveals to government transparency law. I think emphasizing this style of failing will be more salient in openly evaluating Kavanaugh. My analysis follows.