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 DurbinLet's stop treating student borrowers like second-class citizens Trump's immigration push faces Capitol Hill buzzsaw Hillicon Valley: Trump takes flak for not joining anti-extremism pact | Phone carriers largely end sharing of location data | Huawei pushes back on ban | Florida lawmakers demand to learn counties hacked by Russians | Feds bust 0M cybercrime group 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 TrumpThe Hill's Morning Report - White House, Congress: Urgency of now around budget GOP presses Trump to make a deal on spending Democrats wary of handing Trump a win on infrastructure 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 HeitkampOn The Money: Stocks sink on Trump tariff threat | GOP caught off guard by new trade turmoil | Federal deficit grew 38 percent this fiscal year | Banks avoid taking position in Trump, Dem subpoena fight Fight over Trump's new NAFTA hits key stretch Former senators launching effort to help Dems win rural votes MORE of North Dakota, Joe DonnellyJoseph (Joe) Simon DonnellyObama honors 'American statesman' Richard Lugar Former GOP senator Richard Lugar dies at 87 Ralph Reed: Biden is a 'formidable and strong candidate' MORE of Indiana, Claire McCaskillClaire Conner McCaskillBig Dem names show little interest in Senate Gillibrand, Grassley reintroduce campus sexual assault bill Endorsements? Biden can't count on a flood from the Senate MORE of Missouri, and Joe ManchinJoseph (Joe) ManchinLabor head warns of 'frightening uptick' in black lung disease among miners Labor leader: Trump has stopped erosion of coal jobs Overnight Energy: States fight Trump rollback of Obama lightbulb rules | Greens seek hearing over proposed rule on energy efficiency tests | Top Dem asks GAO to investigate climate threat 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 slams Jim Carrey's 'vicious, angry' painting of Alabama governor after abortion ban Eye-popping number of Dems: I can beat Trump 'SleepyCreepy Joe' and 'Crazy Bernie': Trump seeks to define 2020 Dems with insults MORE and John CornynJohn CornynGOP presses Trump to make a deal on spending Trump's immigration push faces Capitol Hill buzzsaw The Hill's Morning Report - Presented by Pass USMCA Coalition - Restrictive state abortion laws ignite fiery 2020 debate 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 CollinsDem senator: Many Republicans 'privately expressed concerns' about Mueller findings Congress: Support legislation to defend Medicare home health  The Hill's Morning Report — Presented by Pass USMCA Coalition — Trump: GOP has `clear contrast' with Dems on immigration 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.