President Trump nominated his second Supreme Court Justice this week, naming Brett Kavanaugh to replace the retiring Reagan appointee Anthony Kennedy.
Whether or not Kavanaugh gets confirmed is another issue – the left was lining up to oppose him even before he was chosen. The extreme nature of the “Resistance” is not a healthy reaction within our democracy, but is a right of speech that we enjoy.
According to Reuters post-election polling, “Supreme Court nominations” scored as the number one reason – among many – that voters chose Trump over Clinton, getting the highest response of all issues at 26% (the economy was second at 22%).
The “resistance” to Kavanaugh may be misplaced. Unlike Gorsuch, who evidenced Justice Scalia’s influence in his rulings and was a devout adherent to originalism – the area of jurisprudence that believes the Constitution should be followed to the letter, and should represent a “strict construction” of the text as it was written – Kavanaugh’s paper trail shows a moderate conservative approach to the application of the Constitution to fact patterns before the Court.
Resisting Kennedy’s replacement should therefore give liberals caution. Sometimes he has gone their way, and like Kennedy, his DC establishment credentials may make his career that of a swing vote on the court as well. Make no mistake, Kennedy was a conservative, appointed by Ronald Reagan who adhered to conservative beliefs most of the time. He was more heterodox in his approach on certain social issues such as gay rights, which made his vote often seen as a swing vote on the Court. But for the left, that may be the best they get under the Trump presidency. Kennedy was conservative with middle of the road social values … Kavanaugh may end up the same.
Hoping the mid-terms give them control of the Senate is a big gamble for Democrats. If they block Kavanaugh, but lose the Senate again in the November mind-terms, Trump’s second choice won’t be a moderate conservative, but a hardcore conservative further to the right than Kavanaugh and possibly even Gorsuch. It is a huge gamble considering that Kavanaugh has something for everyone to like:
I. Top Three Reasons Republicans Should Love Judge Kavanaugh:
- “His dissent in Heller confirms 2nd Amendment commitment”: Even Judge Kavanaugh would reject the idea of absolutism, he has come pretty close in his Heller dissent. The Heller decision, made in the DC Federal Court of Appeals where Kavanaugh served in 2006, was an affirmation of the District’s gun control laws. So stringent they served effectively as a ban on any form of gun ownership. Eventually overturned by the Supreme Court, Kavanaugh stated in his well-documented dissent that not only was the DC ban unconstitutional, but that restrictions on any form of gun ownership would not pass Constitutional muster.
- “Ardent defender of the 1st Amendment”: The precedent used to support the Robert’s court ruling in favor of Citizens United could be found in the 2009 case Emily’s List vs. Federal Elections Commission. In that case, Kavanaugh wrote for the majority that citizens have right to use money to express speech, and supporting advocacy groups falls within the scope of First Amendment protections.
- “His dissent in United States vs. Askew takes a limited view of 4th Amendment protections”: Conservatives who favor law and order policies such as stop and frisk and broad definitions of probable clause will support Kavanaugh’s length record of support for law enforcement. In the Askew case, Kavanaugh ruled that even if the authorized search of the alleged perp is limited in scope, law enforcement is still entitled under the Constitution to continue the search on the subject person more broadly. In the case above, when drugs were not found on the defendant, Kavanaugh dissented in saying the police were within their rights to unzip the coat of the subject where they found an unregistered weapon.
II. “Top Three Reasons Democrats Should Love Judge Kavanaugh”:
- “Obamacare as a tax was the creation of Kavanaugh”: The DC Circuit Court of Appeals first heard a case known as Seven-Sky vs. Holder that under normal circumstances would be a footnote in legal history. Judge Kavanaugh’s lengthy 65-page dissent included the first legal reasoning that the Obamacare individual mandate penalty was a tax, and should be treated as such. This was the legal and intellectual text and language Justice Roberts would use in affirming the Burwell case and therefore confirming Obamacare as constitutional.
- “Illegal Immigrant minors have a right to an abortion”: Judge Kavanaugh dissented in a 2017 case which allowed an illegal immigrant minor, 17 years old, to receive an abortion while in detention, but only to the fact that she was a minor and the state had her in detention without parent consent. He did not invalidate abortions for a minor, abortions for illegals, and many court analysts believe this will provide the wiggle-room to not overturn Roe v. Wade.
- “Military commissions still fall under Federal Statutes”: Under Hamdan vs. Rumsfeld, Kavanaugh’s majority opinion ruled that US military commission trials are required to follow federal statutes which memorialize and encapsulate International Laws of War. In other words, if the US has signed a treaty, or enacted a law, which governs battlefield conduct, and that encapsulates international agreements, then our existing military commission trials (MCT – under the Military Commission Act of 2006, MCA) must abide by those guidelines. Salim Hamdan was Bin Laden’s driver, he ran errands for him, but no evidence was presented that he participated in the planning or execution of terror acts against the United States. Under international law, material support does not constitute an act of war, and his conviction could not stand under Federal Law. Conservatives were angered, liberal cheered, but it was probably the correct call under Federal statutes defining military commissions.
Judge Kavanaugh is a conservative, but he is replacing Anthony Kennedy, who was generally conservative in his rulings throughout his career – so this is not a change to the ideological make-up of the court. Trump’s choice does not alter the voting balance on the court, and in fact has several rulings which fall in line with both sides of the political aisle.
The Supreme Court makes decisions that affect our money. Staying informed on their influence is important – they can impact markets which impacts your money. Protecting your money should be a primary objective of your retirement planning process.
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