Supreme Court Justice Ruth Bader Ginsburg is expected to tender her resignation from the Supreme Court tomorrow, according to my sources.
There was a moment, in the early afternoon on July 9. 2017, when conservatives contemplated the delightful possibility that they might witness the best possible version of President Trump — the man with the will (and flair for the dramatic) that would allow him to be bolder than the average Republican president. The best version of Trump would have nominated Amy Coney Barrett to the Supreme Court.
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. He pushed through bogus allegations of sexual misconduct by a lying deranged woman: Dr. Christine Blasey Ford — and Trump stood by him in a moment of crisis.
In many ways, Kavanaugh is the elitists’ elitist. He 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.
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.
Kavanaugh is the Ben Shapiro of conservative pundits.
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.
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 two years ago, 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.
Now, in what is bound to be another crucial moment in American history, Trump has another chance: Mr. President, nominate Judge Barrett to the Supreme Court.
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