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Constitutional Freedoms

Liberals Face Crippling Paradox in Efforts to Down Kavanaugh

If Supreme Court nominee is mainstream, he will be confirmed — but if an extremist, most likely in the minority

Liberals hoping to upend Judge Brett Kavanaugh’s path to the Supreme Court face a paradox.

If they are to block a nominee in a chamber controlled by Republicans, they must demonstrate that Kavanaugh is not just a judicial conservative but a radical far outside the mainstream.

If they are right about that, however, their most dire predictions cannot come true, since Kavanaugh would be a lonely voice on an island — unable to muster the support from at least four other justices.

Democrats on the Senate Judiciary Committee at last week’s confirmation hearing suggested that Kavanaugh (pictured above) would give President Donald Trump almost unchecked power to avoid accountability from criminal or civil investigations — in the words of Sen. Sheldon Whitehouse (D-R.I.), a “human torpedo to take out” anything special counsel Robert Mueller produces.

Sen. Richard Blumenthal (D-Conn.) insinuated that Kavanaugh would allow the president to take away health care protections for people with pre-existing conditions — even if the Supreme Court upheld the law.

In the caricature painted by opponents, Kavanaugh would place his thumb on the scale in favor of big corporate interests — regardless of the specific facts of each case. In addition, of course, Democrats almost uniformly charge that Kavanaugh would overturn the 1973 Roe v. Wade decision legalizing abortion nationwide.

And based on Kavanaugh’s reluctance to address precedents on issues that might come before the court, left-wing websites have questioned whether the nominee would overturn landmark rulings that recognized numerous rights — such as the right to vote, the right to an attorney, the right of interracial couples to marry, and the right to use contraception.

“It’s nutty,” said Carrie Severino, whose Judicial Crisis Network has spent millions of dollars promoting Kavanaugh’s confirmation. “Most of the attacks were detached from reality. It’s a purposeful misreading of his opinions or, more often, speeches he has made or comments he has made.”

Dems Make a ‘Phony Argument’
Republican leaders hope to confirm Kavanaugh in time for the start of the next term of the court, beginning in October.

A single Supreme Court justice as far outside the mainstream as Kavanaugh allegedly is cannot do much. Each justice has responsibility for geographic regions and can issue temporary orders on emergency petitions. But the entire court eventually can weigh in on those questions. On everything else, it takes a majority of at least five to carry the day.

John Eastman, director of Chapman University’s Center for Constitutional Jurisprudence, noted that Kavanaugh has sided with Democratic-appointed judges more than 90 percent of the time on the U.S. Court of Appeals for the District of Columbia Circuit.

Democratic senators know Kavanaugh is not an extremist, he said.

“It just looks like it’s a phony argument,” he said.

Severino, chief counsel and policy director of the Judicial Crisis Network, agreed. She said Chief Justice John Roberts is unlikely to move the court too radically away from the status quo.

“Chief Justices Roberts is now the swing vote,” she said. “The discussion we’ve seen is more scaremongering at this point.”

Eastman said it is true that Kavanaugh’s views on some significant issues are unknown. But he added that the fear of constitutional originalists is that Kavanaugh is too much like the man he would replace, former Justice Anthony Kennedy.

“Either Kavanaugh or Roberts [is] going to be the swing vote on [Roe v. Wade] … It’s not at all a foregone conclusion.”

Many SCOTUS watchers consider the current Supreme Court to be moderately conservative on most issues, with Kennedy breaking ranks from time to time. In the last court term, however, he did not side with the four liberal-leaning justices in a single 5-4 vote.

Eastman said Kavanaugh seems likely to solidify the conservative majority and perhaps pull it in a more originalist direction when it comes to interpreting the Constitution — especially when it comes to the burgeoning reassessment of the administrative state.

Experts Say Court Might Shift Modestly
For years, the courts have deferred to federal agencies to determine their regulatory powers under statutes passed by Congress. But several justices have begun to challenge that notion, arguing that the courts should lay down limits.

Eastman said he suspects that is the biggest concern among Democrats. Drawing that out in a confirmation hearing is difficult, however, he added. He said it is much easier to stoke fears among Americans that they are on the verge of losing basic liberties.

But Eastman said there is little evidence that Kavanaugh would, for instance, overturn recent cases upholding the Affordable Care Act or gay marriage. On Roe v. Wade, Kavanaugh is not likely to be the deciding vote even if he is inclined to overturn it, he said.

Related: Watergate Figure John Dean Lays into Kavanaugh, Says He Lied

Eastman said the court under Roberts has moved cautiously. He said Roberts has tended to favor an incremental approach rather than take broad strokes. And, he added, Roberts seems to allow political considerations to enter into his legal analysis of high-profile cases.

Against that backdrop, it is difficult to see the court striking down Roe v. Wade, he said.

“Either Kavanaugh or Roberts [is] going to be the swing vote on that … It’s not at all a foregone conclusion,” Eastman said.

Kavanaugh has won support not just from the Right, but from many progressive lawyers as well. On Friday, Yale Law School professor Akhil Amar — a Hillary Clinton supporter — tried to reassure Democrats that Kavanaugh is well within the mainstream of legal thought.

“Many of Kavanaugh’s views about the executive branch are quite standard,” he testified. “On several other executive branch topics, Kavanaugh’s views are not yet conventional wisdom but are nevertheless sound.”