Brett Kavanaugh (extreme right) is President Trump’s choice to fill the seat of retiring Justice Anthony Kennedy (left).
Last night, as President Trump presented his pick for a U.S. Supreme Court Justice to replace Justice Kennedy, the agreed-on talking points came down to a few. He’s not a misogynist (“I am proud that a majority of my law clerks have been women”), and he has a wife and two daughters. He has a black friend; his mother taught at two majority African American high schools. Also, he has a heart (volunteers at a homeless meal site).
While the President was feting District Court Judge Brett Kavanaugh, however, he was also emailing his base to assure them that this was the same kind of head fake to the center we saw last year with Neil Gorsuch—who since has demonstrated that his judicial alignment is somewhere between Clarence Thomas and William F. Buckley.
In his email, Trump described Kavanaugh as “in the mold of” the late outspoken justice Antonin Scalia—once ranked the third most conservative judge in modern history.
“I promised you I would only appoint justices in the mold of the late, great Justice Antonin Scalia,” Trump wrote in his email. “I am once again fulfilling that promise by appointing a strong constitutionalist . . . to the Supreme Court.”
By “once again,” Trump refers to Gorsuch—a good word choice, but one that undersells things just a bit.
In a ranking by Washington University, comparing the relative ideological positions of justices, Kavanaugh is actually two degrees farther right than Gorsuch, and only a hair shy of Clarence Thomas. Others have described Kavanaugh’s record on constitutional originalism “impeccable,” and noted there are implications for the Mueller investigation given that Kavanaugh has authored an article arguing that sitting presidents should be immune from both civil suits and criminal prosecutions.
Kavanaugh is actually two degrees farther right than Gorsuch, and only a hair shy of Clarence Thomas.
Trump, in his email, said his guy “will protect our religious liberties, uphold the rule of law, and interpret the Constitution as it was originally understood by our Founders.”
Ah yes, the good ol’ days when the Bill of Rights somehow co-existed with Jim Crow and women not being able to vote or hold office. “Our religious liberties” didn’t have much room for non-Christians back in the day, either.
Trump finishes with quite the kicker: “Senate liberals know that we have the opportunity to reshape the Supreme Court for an entire GENERATION.” (As Trump helpfully tweeted a few days ago, “I capitalize certain words only for emphasis, not b/c they should be capitalized!”)
While Justice Kennedy was a conservative that famously made corporations people with the Citizens United decision, he’s better known for 5-4 decisions making gay marriage the law of the land, and upholding a woman’s right to make decisions about the going-ons of her own body.
While conservatives call such warnings “scare-mongering” and assure everyone that the worst-case scenario would be that abortion rights are made a state issue, keep in mind that the anti-choice movement has also been pushing hard for “personhood” legislation, which gives a fetus full rights at the moment of conception.
Under such bills, anything that potentially destroys that microscopic life, including conventional birth control pills, would be banned.
While this seems far-fetched, the legal theory that would ultimately hold up such legislation—that fetuses are human beings and deserve equal protection under the Constitution—is not really that unimaginable in a Kavanaugh court. In fact, that was exactly the argument made by Brown University Professor Corey Brettschneider, in his New York Times op-ed opposing Neil Gorsuch’s nomination.
When Trump, the same guy that stated of abortion, “you have to ban it,” says “reshape” the court for a “GENERATION,” we should believe him.
