David French is a senior fellow at the National Review Institute.
Would another Republican have the guts to put forward a nominee who would so clearly inflame the culture wars? Would another Republican president shatter the GOP nominee mold by selecting a mother of seven kids, an outspoken Christian and a graduate from a “normal” non-Ivy League law school? The base-motivating, electrifying pick was right there, in the palm of his hand.
Then, he went establishment. He chose a man that any Republican president would have nominated. He made the best safe choice he could: Judge Brett Kavanaugh of the U.S. Court of Appeals for the District of Columbia Circuit.
Make no mistake, there is a lot for conservatives to like about Kavanaugh. He dissented from the D.C. Circuit’s opinion upholding the District’s ban on semiautomatic rifles. He has written powerfully in opposition to the excesses of the administrative state and in favor of the proper separation of powers. He has been solid on free speech and religious liberty.
In many ways he’s the elitists’ elitist. Kavanaugh is a double Yale graduate — from both Yale University and Yale Law School — he clerked for Justice Anthony M. Kennedy, and he’s well known as a “feeder judge” for Supreme Court clerks. Before he was nominated to the federal bench, he worked for solicitor general Kenneth W. Starr during the George H.W. Bush administration, worked for Starr during the Whitewater and Monica Lewinsky investigations, and worked for President George W. Bush from 2001 to 2006.
The scene as Trump nominates Brett Kavanaugh to the Supreme Court
There is arguably no better-credentialed nominee in all of conservative America, and a small army of his former law clerks have been busy writing — publicly and privately — in defense of their former boss, assuring conservatives that he will be the court’s next intellectual giant.
Yet the Kavanaugh pick has been greeted with an ever-so-slight sigh of disappointment. Yes, there are the critiques of his record. In Seven Sky v. Holder, he dissented from the majority opinion upholding the constitutionality of Obamacare, but he did so by holding that the suit was barred by the Anti-Injunction Act, in a ruling that bolstered the Obama administration’s ultimately successful claim that the Obamacare penalty was truly a tax.
In Priests for Life v. Department of Health and Human Services, Kavanaugh wrongly held that the government had a “compelling interest” in “facilitating access to contraceptives” for employees of the specific religious plaintiffs in the case. That conclusion wasn’t required by Supreme Court precedent, and it cheapened the very concept of a “compelling governmental interest.” After all, religious employers have broad latitude to limit their employees’ conduct, and the government has little legal authority to meddle in the organization’s religious mission.
counterpointBrett Kavanaugh is not a hero
But, truth be told, Kavanaugh’s record isn’t the main reason for the flash of conservative regret. Give a judge a paper trail long enough, and he’ll decide cases that ignite controversy. No, the reason for the regret runs a bit deeper. Especially for America’s Christian conservatives, a potential Barrett nomination represented a chance for an important cultural moment — an opportunity for the best of young professional Christians to face the worst of progressive antireligion bias and prevail on the largest possible stage.
If “the dogma” could “live loudly” within her, as Sen. Dianne Feinstein (D-Calif.) famously told Barrett, who sits on the U.S. Court of Appeals for the 7th Circuit, at her confirmation hearing last year, and she could ascend to the Supreme Court, then she would quite possibly become the conservative folk-hero equivalent of Justice Ruth Bader Ginsburg. It’s not just that Barrett is qualified; she is. It’s that conservative Christians see her as qualified and a person they felt like they know. In many ways, her life story was their life story. They, too, belonged to communities of believers like People of Praise. They, too, went to schools like the University of Notre Dame.
Trump had — right in front of him — the judge who could be populist and principled; the person who could galvanize the base and be an originalist judicial bedrock for the next 30 years.
The president blinked. In the coming days and weeks, you’ll see conservatives rally around Kavanaugh. The judicial nomination wars will settle into their post-filibuster norm. It will be easy for Democrats to largely vote in lockstep. Kavanaugh’s credentials will make it easy for Republicans to do the same. In the coming years, he will make the court more originalist. He’ll certainly write at least some opinions that make conservatives stand up and cheer, but at roughly 9 p.m. on July 9, for a critical part of Trump’s base, the cheers for Kavanaugh were a tad forced.
There was, for the first time in Trump’s judicial wars, a palpable sense of an opportunity lost.