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 DurbinDick DurbinManchin: Negotiators to miss Friday target for deal on reconciliation bill Democrats look for plan B on filibuster The Memo: Cuts to big bill vex Democrats 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.
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 HeitkampWashington's oldest contact sport: Lobbyists scrum to dilute or kill Democrats' tax bill Progressives prepare to launch counterattack in tax fight Business groups aim to divide Democrats on .5T spending bill MORE of North Dakota, Joe DonnellyJoseph (Joe) Simon DonnellyBiden to have audience with pope, attend G20 summit Biden taps former Indiana Sen. Donnelly as ambassador to Vatican Republicans may regret restricting reproductive rights MORE of Indiana, Claire McCaskillClaire Conner McCaskillEx-Rep. Akin dies at 74 Republicans may regret restricting reproductive rights Sunday shows preview: States deal with fallout of Ida; Texas abortion law takes effect MORE of Missouri, and Joe ManchinJoe ManchinAngus King: Losing climate provisions in reconciliation bill weakens Biden's hands in Glasgow Independent senator: 'Talking filibuster' or 'alternative' an option Rep. Khanna expresses frustration about Sinema 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 CruzOvernight Health Care — Presented by Carequest — Colin Powell's death highlights risks for immunocompromised The Senate confirmation process is broken — Senate Democrats can fix it Australian politician on Cruz, vaccines: 'We don't need your lectures, thanks mate' MORE and John CornynJohn CornynCornyn raises more than M for Senate GOP Is the Biden administration afraid of trade? The Hill's Morning Report - Presented by Facebook - After high drama, Senate lifts debt limit 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 - Presented by Uber - Biden makes his pitch as tax questions mount Emanuel defends handling of Chicago police shooting amid opposition to nomination Emanuel to take hot seat in Senate confirmation hearing 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.