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Wednesday, July 11, 2018

The Kavanaugh Nomination: At Least Another Gorsuch, Maybe More

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The Kavanaugh Nomination:  At Least Another Gorsuch, Maybe More

What should we think of the nomination of Brett Kavanaugh to the United States Supreme Court (SCOTUS)? My view is that we should be just short of jubilant. His judicial record on the United States Court of Appeals for the DC Circuit makes it clear that he will be rock solid on religious liberty for Catholics and Second Amendment liberty for gun owners. As for Roe v. Wade, his statement during his prior confirmation hearing to the effect that he would be bound by it as a Circuit judge—he could hardly overrule it from that bench—is no indication that, as an Associate Justice of SCOTUS, he would not vote to cut back the infamous decision in ways that would amount to an abrogation if not an outright overruling.

In short, I am confident that this former law clerk for Justice Kennedy will not be another Kennedy but rather more in the model of Justice Scalia, whose judicial philosophy he has praised. Here in part is what he had to say about Scalia after his passing:

Many of you no doubt knew him better than I did. So I do not want to overstate my relationship with him. But I just loved the guy. To me, Justice Scalia was and remains a hero and a role model…. What did Justice Scalia stand for as a judge? It’s not complicated, but it is profound and worth repeating often. The judge’s job is to interpret the law, not to make the law or make policy. So read the words of the statute as written. Read the text of the Constitution as written, mindful of history and tradition.

Don’t make up new constitutional rights that are not in the text of the Constitution. Don’t shy away from enforcing constitutional rights that are in the text of the Constitution. Changing the Constitution is for the amendment process. Changing policy within constitutional bounds is for the legislatures. Remember that the structure of the Constitution—the separation of powers and federalism—are not mere matters of etiquette or architecture, but are at least as essential to protecting individual liberty as the individual rights guaranteed in that text. And remember that courts have a critical role, when a party has standing, in enforcing those separation of powers and federalism limits. Simple but profound.

brett trumpSupreme Court nominee Brett Kavanaugh, his wife, Ashley Estes Kavanaugh, and their daughters with President Trump. (Getty Images)

When called to the microphone after Trump had announced his nomination, Kavanaugh made it a point to refer several times to his Catholic education and faith, including a reference to his parish priest, as if to dare the Senate to conduct the kind of inquisition to which Amy Barrett was shamefully subjected in being confirmed to sit on the Seventh Circuit. It is clear that in Kavanaugh we have a fighter who will not be intimidated by the leftist Lynch mobs and media jackals who will oppose his nomination with demonic fury.

Consider also that the conservative legal commentator Andy Schlafly, son of the late Phyllis Schlafly and a Harvard Law grad, is delighted with this nomination even though he was critical of the Gorsuch nomination (which has proven thus far to be a huge success) and of other potential nominees on Trump’s List of 25 as being insufficiently pro-life or not at all pro-life. As Schlafly said in an email blast this morning:

Thank you President Trump and his advisers who stood their ground against the intense pressure by Mitch McConnell, pro-aborts, the liberal media, and fake conservatives.  Also, a special thanks to Ann Coulter and too.

Some on this list preferred Amy Barrett, and she would have been a game-changer.  But Brett Kavanaugh is a fabulous choice and is certainly a far better nominee than the other rivals.

The coordinated campaign by some to nominate the more liberal, not-even-pro-life Raymond Kethledge rather than Kavanaugh is duly noted.  A few think they can say something pro-life a decade ago and still claim to be pro-life today, despite siding with pro-aborts on judicial nominations.  Kethledge supporters are not pro-life if they continue to oppose Kavanaugh.

Tonight is a very bad day for liberals, and a very good one for the unborn!

Moreover, by nominating the eminently confirmable Kavanaugh, who is certain to attract the votes of one or two red state Democrats in fear of losing their Senate seats should they reject him, Trump leaves the way open to add Amy Barrett, a Catholic mother of seven, to the SCOTUS bench once that abominable little tyrant, Ruther Bader Ginsburg, finally releases her clutches on power upon her death or retirement, which I believe is reasonably likely to occur before the end of Trump’s first term and certainly during his second.

Finally, however, there is one small but telling, shall we say, existential point in Kavanaugh’s favor. According to a book by David Brock, back in 1997, when Kavanaugh was working for Special Council Ken Starr during the Bill Clinton investigation, he mouthed the word “Bitch” when the camera panned to Hillary during the State of the Union Address.

Perhaps this example of perspicuity alone is reason to expect great things from Kavanaugh as SCOTUS is reconfigured from the tyrannical super-legislature it has become into something resembling an actual court of review with limited authority. And even if the new SCOTUS continues to exhibit the conservative version of judicial positivism that characterized the jurisprudence of Justice Scalia—i.e., “let the people decide” questions that belong to the democratic majority—that would be the best possible outcome one could expect in the American judicial system as it would return to the states, for varying outcomes, issues involving abortion and other fake “rights” invented by the Court’s once-liberal majority.

One cannot hope for more in America (the predominantly Catholic Hungary and the overwhelmingly Catholic Poland are different cases) unless a divine chastisement or planetary catastrophe reboots our civilization and makes new beginnings possible. (Cf. Walter Miller’s A Canticle for Leibowitiz).

At any rate, I cannot imagine how anyone at this point in the Trump administration could honestly continue to maintain that his election instead of Hillary’s has made no difference for the better in the course of this nation’s history. It is clear that Trump’s election represents a political miracle whose occurrence must have had some connection to the prayers of the faithful that this nation not be allowed to descend finally and irretrievably into the abyss. Perhaps this is only the briefest of reprieves. But even if it is, are we not obliged to thank God for having conceded it to a nation so long in rebellion against His Law?

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Last modified on Wednesday, July 11, 2018
Christopher A. Ferrara

Christopher A. Ferrara: President and lead counsel for the American Catholic Lawyers Inc., Mr. Ferrara has been at the forefront of the legal defense of pro-lifers for the better part of a quarter century. Having served with the legal team for high profile victims of the culture of death such as Terri Schiavo, he has long since distinguished him a premier civil rights Catholic lawyer.  Mr. Ferrara has been a lead columnist for The Remnant since 2000 and has authored several books published by The Remnant Press, including the bestseller The Great Façade. Together with his children and wife, Wendy, he lives in Richmond, Virginia.