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A Conservative's Conservative Before He Was Nominated And An Open-Minded Jurist After

It's been just under a month since President Trump nominated Brett Kavanaugh to the U.S. Supreme Court. Before Trump announced the nomination, he created something of a pageant between the possible nominees. As Trump feigned uncertainty about whom he would ultimately select, supporters of the various nominees took the opportunity to make their case to the president (usually via Fox News), or to fellow members of the president's caucus (usually via other conservative media outlets).

It's useful to look back at these statements, chiefly because - as Lawrence Hurley and others have suggested - the case made for Kavanaugh before the president officially announced the nomination differs markedly from the case made for Kavanaugh after the president officially announced the nomination.

As Hurley noted, before the nomination, Kavanaugh's supporters depicted him as a "warrior" for conservative causes like religious liberty, and as someone who would never go soft on issues like abortion. After the nomination, Kavanaugh's backers depicted him as an open-minded jurist whose views are genuinely unknown on a litany of issues, including abortion, and have suggested he should be evaluated based on his credentials and qualifications alone.

The contrast between the pre- and post-nomination statements is also interesting because it contains two different narratives about how Supreme Court nominees should be selected and evaluated - based on their substantive views, or the shininess of their resume? The contrast also underscores the efforts to obfuscate what this president and the Republican party have run on to date - appointing Supreme Court justices who are pro-life and would overturn Roe v. Wade.

There is more still. The contrast between the pre- and post-nomination statements also highlights the unapologetic willingness of the Republican Party and its attendant conservative legal movement to announce a substantive vision for the Supreme Court and the federal courts - their desire to have the courts advance certain causes and produce certain results. In some ways, that is unsurprising. But it is still worth underscoring that the Republicans' pre-confirmation Kavanaugh sales pitch has not really been about Kavanaugh's "forensic rigor" or "methods of legal interpretation" or "adherence to the rule of law," which is typically the line we are sold. All of these things can be true, and many scholars believe that the rule of law contains a substantive component. But the conservative media strategy is useful for lefties to think about as they reflect on what they should be saying and doing about the federal courts, and whether to give in to the other side's attempts to shame them for considering things such as substantive outcomes, or basic and rudimentary demands of justice.

Some representative pre-nomination statements:

  • June 28, 2018: A post co-written by a former Kavanaugh clerk praises Kavanaugh's "important" decisions and writings, citing favorably those opinions adopted by other conservative jurists and by the Supreme Court in majority-conservative decisions, particularly those written by Scalia.
  • June 29, 2018: One former law clerk said that Kavanaugh does not have a "wobbly bone in his body." The clerk offered that he "'would bet the farm that Judge Kavanaugh would not go wobbly' on key conservative issues."
  • July 2, 2018: Kavanaugh's former student J.D. Vance extolled the judge's conservatism in the Wall Street Journal, saying the judge's "record spans just about every important area of the law, and conservatives should be happy with the results," citing the judge's dissent in Garza v. Hargan first. (Garza is an abortion case that Leah (here and here) and others have written about.)
  • July 3, 2018: Kavanaugh has an "[i]mpeccable" record of conservatism, writes Sarah Pitlyk, another former law clerk of his and current special counsel for the Thomas More Society. "On the vital issues of protecting religious liberty and enforcing restrictions on abortion, no court-of-appeals judge in the nation has a stronger, more consistent record than Judge Brett Kavanaugh." He has a "clear, consistent and rock solid record on the issues that matter most to social conservatives." The clerk observed that "social conservatives understand the stakes in filling the Supreme Court vacancy," which provides "the opportunity to transform the Court for a generation to come." The clerk also surmised that "Judge Kavanaugh's record on issues of concern to social conservatives is rock solid, and it far exceeds that of any other contender."
  • July 3, 2018: Citing an anonymous legal source, a Newsmax article describes Kavanaugh as "no Bushie" and "more like Scalia than Kennedy."
  • July 4, 2018: In a series of posts, the National Review's Ed Whelan trumpeted Kavanaugh's conservatism on abortion, "religious liberty," campaign finance, Chevron, executive power, and the Second Amendment.
  • July 6, 2018: A former law clerk describes Kavanaugh as a "warrior for religious liberty," and notes that "every serious, informed conservative . . . has championed his unwavering conservative principles. See, for example, Ann Coulter [and] Laura Ingraham."

Some representative post-nomination statements:

  • July 10, 2018: The Judicial Crisis/("Confirmation") Network released some statements from Judge Kavanaugh's former clerks. The statements described him as possessing "open-mindedness;" judging "each case fairly and independently;" a "fair, independent judge for whom fidelity to the Constitution is the guiding light;" "Independent" and "fair-minded."
  • July 10, 2018: On Roe v. Wade, a former clerk said the judge "looks at the issues as they come. He keeps an open mind and sticks to the law. He's referred to the judge's role as that of an umpire, so I expect that with this particular issue or any others . . . he would continue to keep an open mind and just call the issues as they are before him in the case."
  • July 10, 2018: Ed Whelan writes that Kavanaugh's positions on executive privilege are "widely held."
  • July 11, 2018: A former clerked praised Kavanaugh's "intellectual rigor, fairness, [and] open-mindedness."
  • July 11, 2018: In a TV interview with Republican Sen. Orrin Hatch, the following exchange occurred:

    JUDY WOODRUFF: Can you guarantee Democrats, though, Senator, that, if Judge Kavanaugh is confirmed, that Roe v. Wade wouldn't be overturned?

    HATCH: Well, I don't think anybody is going to overturn Roe vs. Wade. It's a settled opinion that, yes, a lot of conservatives would like to see it overturned, but, actually, he's got bigger fish to fry.

  • July 12, 2018: Ben Shapiro at the National Review writes that Kavanaugh will not be transformational: "Kavanaugh's opinions tend not to be ringing endorsement or rebukes of the Justice Scalia or Justice Thomas type; they tend to be narrowly tailored decisions that recall Chief Justice Roberts and Rehnquist."
  • July 12, 2018: A former clerk described him as "open-minded," and stated that "sometimes" he will part "from his colleagues on the left and the right when that is what the law requires."
  • July 12, 2018: Florida AG Pam Bondi quoted one of the judge's former clerks as describing Kavanaugh as someone who "approaches each case with an open mind."
  • July 12, 2018: Stuart Gerson, former acting U.S. Attorney General and "an acquaintance of Kavanaugh's," told Inside Health Policy that Kavanaugh "is not striving to appeal the issue of deference, but to come up with a more scientific and reasonable way of interpreting laws and regulations, consistent with his views of statutory textualism."
  • July 13, 2018: The Federalist writes that it is "ludicrous" to claim that Kavanaugh would not support Obamacare.
  • July 16, 2018: Jonathan Adler says that "Judge Kavanaugh's concern about overbroad applications of Chevron should not be misinterpreted as hostility to regulation."

As we said, food for thought.


This work originally appeared on Take Care, and is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License. Comments welcome.


Posted on August 13, 2018

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