Brett Kavanaugh is back in the fray with his Supreme Court nomination

Brett Kavanaugh is back in the fray with his Supreme Court nomination
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With his nomination to the Supreme Court, Brett Kavanaugh has once again walked into a defining moment of history. Once called the “Forrest Gump of Republican politics” by Sen. Dick DurbinRichard (Dick) Joseph DurbinChicago detention facility under investigation following allegations of abuse of migrant children Senate approves resolution warning Trump not to hand over US officials Deal to fix family separations hits snag in the Senate MORE (D-Ill.), Kavanaugh has a curious tendency of popping up whenever the country seems poised to make momentous changes, from the Whitewater investigation to the Clinton impeachment to the Florida recount in the 2000 presidential election. Now with the balance of the Supreme Court teetering by one vote, Kavanaugh is again in the middle of the fray.

Kavanaugh’s ubiquitous appearances in history, however, are the only comparisons to the movie character. He is smart, disciplined, and would be reliable as a conservative member of the court. Indeed, his nomination may be the most predictable ever. He has long been viewed as someone actively groomed for the court by supporters in the Federalist Society and conservative legal circles. Short of being raised hydroponically in the basement of the Federalist Society, he could not be more carefully constructed as a nominee in waiting. He has, literally, spent decades being developed within conservative circles for this moment.

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That long association with the D.C. legal establishment is also the curious element of this nomination. The Supreme Court justice that Kavanaugh most resembles in both career and philosophy is Chief Justice John Roberts, who you may recall, was once described by Donald TrumpDonald John TrumpSchiff: Surveillance warrant docs show that Nunes memo 'misrepresented and distorted these applications' Chicago detention facility under investigation following allegations of abuse of migrant children Ex-Trump aide: Surveillance warrants are 'complete ignorance' and 'insanity' MORE as a “disaster in terms of everything we stand for.” (Kavanaugh was credited by George Bush with convincing him to select Roberts over options like Samuel Alito to replace William Rehnquist.)

Kavanaugh also was not the safest bet for this nomination. The easiest option would have been someone like Thomas Hardiman, who repeatedly has been on the short list for his conservative but largely uncontroversial record. (Hardiman holds the unenviable position as an “always the bridesmaid never the bride” candidate for the court.) Kavanaugh, in contrast, comes with baggage from his long career threading through our nation’s greatest controversies. He has written more than 300 opinions and carries a huge record in the executive branch that will make the expedited confirmation schedule challenging to fulfill.

However, Kavanaugh is likely to be confirmed and to place maximum pressure for a “yes” vote on Democratic senators in purple states like Heidi HeitkampMary (Heidi) Kathryn HeitkampHistory argues for Democratic Senate gains Polling analyst: Same Dems who voted for Gorsuch will vote for Kavanaugh Dems pressure GOP to take legal action supporting pre-existing conditions MORE of North Dakota, Joe DonnellyJoseph (Joe) Simon DonnellyHistory argues for Democratic Senate gains Polling analyst: Same Dems who voted for Gorsuch will vote for Kavanaugh Pollster: Kavanaugh will get Dem votes MORE of Indiana, Claire McCaskillClaire Conner McCaskillHistory argues for Democratic Senate gains Polling analyst: Same Dems who voted for Gorsuch will vote for Kavanaugh Pollster: Kavanaugh will get Dem votes MORE of Missouri, and Joe ManchinJoseph (Joe) ManchinHistory argues for Democratic Senate gains Pollster: Kavanaugh will get Dem votes Overnight Health Care: Trump officials explore importing prescription drugs | Key ObamaCare, drug pricing regs under review | GOP looks to blunt attacks on rising premiums | Merck to lower some drug prices MORE of West Virginia. He is the perfect wedge nominee to put these senators at odds with the conservative and independent voters they will face in their midterm reelection bids.

Kavanaugh would make an immediate impact on court. He is a critic of the rise of the “fourth branch” — the bureaucracy — and the deference given to federal agencies. He will join Justice Neil Gorsuch with well-articulated and principled opposition to the increasing independence and authority of federal agencies. On the seminal case of Chevron v. Natural Resources Defense Council, where the court expanded the discretion of those agencies, Kavanaugh is clearly ready to reexamine its precedent, having written: “So Chevron itself is an atextual invention by courts. In many ways, Chevron is nothing more than a judicially orchestrated shift of power from Congress to the executive branch. Moreover, the question of when to apply Chevron has become its own separate difficulty.”

Where libertarians are likely to feel most uneasy about Kavanaugh is his deference to executive power in the president. There is a subtle contrast in his jurisprudence on such deference. Although he has sharply criticized agency authority, he has shown the opposite inclination about inherent presidential authority. That was the case in his concurrence in Klayman v. Obama, where the D.C. Circuit refused to hear a case challenging the secret National Security Agency metadata collection program.

Kavanaugh went beyond his judicial colleagues to not only argue that such metadata did not constitute a search under the Fourth Amendment but that, if it were a search, it was still constitutional because the government had a “special need” in preventing terrorism. That view could sweep away core privacy protections anytime a president declared that government surveillance was needed to combat terrorism.

However, he has Robertesque tendencies. Notably, some conservatives oppose him due to his vote upholding ObamaCare. There was another case that should comfort liberals and worry conservatives. In Sissel v. Department of Health and Human Services, Kavanaugh joined his colleagues in rejecting a challenge to the individual mandate under the origination clause, which requires that a bill raising revenue must originate in the House. The Senate routinely guts the clause by taking a House bill, deleting the content, and then inserting entirely new text while claiming that it is the bill because the number did not change.

It infuriates textualists and undermines the important function of the origination clause. Kavanaugh went out of his way to say that he not only supported the denial of an en banc, or full court, review in the case but wanted to “rule for the government on the ground that the Affordable Care Act originated in the House.” Notably, that challenge was supported by Ted CruzRafael (Ted) Edward CruzCruz: 'I'm glad' Disney fired James Gunn over 'horrible' tweets Washington needs to end hidden inflation tax on our capital gains GOP tax writer introduces bill to reduce capital gains taxes MORE and John CornynJohn CornynThe Hill's Morning Report — Trump and Congress at odds over Russia Senate GOP attempts to wave Trump off second Putin summit Senators push to clear backlog in testing rape kits MORE, who will now vote on Kavanaugh.

Kavanaugh is clearly worthy of this nomination based on his record and his intellect. He will bring considerable depth to the court, but he also will bring considerable change in many areas. He is likely to depart from Justice Anthony Kennedy, for whom he clerked for on the court in the 1990s, on the use of race in college admissions, detainee rights, the death penalty, and other areas currently shaped by 5-4 votes.

Finally, there is abortion. Kavanaugh is someone who clearly does not subscribe to the logic of Roe v. Wade and is likely, at a minimum, to curtail that precedent in its restriction of state legislation. However, he still meets the Susan CollinsSusan Margaret CollinsThe Hill's Morning Report — Russia furor grips Washington Overnight Health Care: Novartis pulls back on drug price hikes | House Dems launch Medicare for All caucus | Trump officials pushing ahead on Medicaid work requirements Senate panel to vote next week on banning 'gag clauses' in pharmacy contracts MORE test on this. Even though everyone on the short list is widely believed to be hostile to Roe, the Republican senator is not requiring a nominee who will not overturn or gut Roe. Rather, she is demanding, as she did with Gorsuch, someone who will not say publicly that they wish to do so. As Collins told CNN recently, she will not vote for anyone “who demonstrated hostility to Roe v. Wade” and will only vote for a nominee who says that “they respect precedent.”

It is hard to imagine a nominee saying they do not respect precedent. It is a lot like walking in and refusing to take the oath because you do not want to limit your options. Like Roberts, Kavanaugh is a buttoned-down witness who is unlikely to give Democrats much of an opening in his confirmation hearing. Collins wants plausible deniability, and Kavanaugh will provide it. There is a difference in knowing something and proving something. Forrest Gump famously said that “life was like a box of chocolates. You never know what you’re gonna get.” We know exactly what we are going to get with Kavanaugh, but Democrats will be hard-pressed to prove it.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.