Trump's extreme makeover of the Supreme Court is now complete
On Monday night, President Trump, in his now customary practice of turning somber national choices into cheap show business stunts, announced Brett Kavanaugh as his choice to fill the Supreme Court seat of retiring Justice Anthony Kennedy.
Kavanaugh, currently serving on the District of Columbia Court of Appeals, is a white man from Yale University. His selection wasn't much of a surprise. Court watchers spent the weekend avidly reading the tobacco leaves about which way Trump was leaning. His team reportedly sent out different smoke signals to different conservative groups, to maximize the ratings for Supreme Court Madness. But this choice was never about what kind of meat to have for dinner. It was about what precise cut of dead, originalist cow flesh to put on the grill. President Trump cribbed his shortlist from his arch-conservative paymasters at the Heritage Foundation and the Federalist Society, and it was populated exclusively by hardcore, right-wing fanatics. With Kavanaugh's appointment, the Supreme Court is poised to entrench conservative power in this country for another long generation.
Those hoping Trump would bumble into nominating some might-be-liberal were obviously disappointed, but no one should be surprised. The conservative movement has been planning for this moment for decades, and there was no way they were going to get it wrong, especially when the president is an empty vessel who will do more or less whatever his backers tell him. That Kavanaugh cut his teeth on the Kenneth Starr investigation of Trump's bete noir, former President Bill Clinton, could only have boosted his fortunes. And should questions of whether a sitting president can be prosecuted for crimes ever end up before the Supreme Court, Kavanaugh conveniently holds particularly expansive, Trump-friendly views on executive power.
Conservatives should be elated, because the appointment of a fifth originalist to the court imperils all manner of precedent, from abortion rights in Roe v. Wade to marriage equality in Obergefell v. Hodges. Kavanaugh will likely recite the same script about precedent that his predecessors have, but no one should be fooled: With this pick, it is likely that abortion will be illegal in many parts of the United States by next fall. It is always possible, of course, that Kavanaugh will arrive at the precipice of overturning Roe and decide that doing so would not be in the long-run political interest of the people who appointed him. But from this moment forward, it is assured that a challenge to Roe will be heard by this court, and that it will be one of the dominant issues of the 2020 campaign.
Beyond abortion, Kavanaugh will be a reliable conservative vote on everything from law-and-order issues to the Second Amendment. The chance that this Supreme Court will release America from its torment on gun control, mass incarceration, or campaign finance, for example, have been effectively reduced to zero. Instead, it now stands ready to deliberately rupture a series of national consensuses.
This dark day was fully predictable two years ago. A conservative seat was literally being held open during the 2016 election by Senate Majority Leader Mitch McConnell (R-Ky.) and his allies. In their final debate in Las Vegas, both Hillary Clinton and Trump made it clear for voters what kind of person they would put into Antonin Scalia's seat, and presumably into any other openings as well. Clinton stated that she wanted a court that will "stand on the side of the American people," and "stand up on behalf of women's rights, on behalf of the rights of the LGBT community, that will stand up and say no to Citizens United." Trump, after beginning his response with a bizarre, word-ceviche attack on Ruth Bader Ginsburg, stated that "the justices that I'm going to appoint will be pro-life … They will interpret the Constitution the way the founders wanted it interpreted."
This president doesn't care about unity or balance on the courts, nor do his backers. They would all be happy to see a conservative Supreme Court exercise ruthless dominion over an increasingly progressive country for the next 30 years. But that Las Vegas exchange also points to a problem with the way Democrats generally talk and think about courts.
A court that stands "on the side of the American people" is not a judicial philosophy. One that hews closely to "the way the founders wanted" the Constitution interpreted, on the other hand, is. That asymmetry of vision has allowed conservatives to successfully convince voters that jurisprudence consists almost entirely of applying the clear meaning of the Constitution, or perhaps, where there is ambiguity, digging into what the words of the text meant to people living at the time. As the University of Chicago's David A. Strauss noted in The Living Constitution, "That means that judges have to be historians." Law is focused on the past, with judges acting as amateur Toynbees, rather than on the needs of the present. This is how you get a 5-4 majority deciding, in Citizens United v. FEC, that corporations possess an unfettered right to expend truly bonkers amounts of cash on American elections, as if such a thing were remotely in the long term interest of American society.
For conservatives, this is an even bigger victory than the last Supreme Court opening. The appointment of the statuesque zealot Neil Gorsuch merely restored the status quo ante on the court. Kavanaugh, however, ushers in a terrifying new world. For the first time since the mid-1930s, the Supreme Court will be in the grip of a committed ideological conservative majority. Because even though conservatives have held a series of nominal 5-4 majorities since the 1970s, that edge was tempered by the presence of Republican appointees who occasionally voted with the liberals, like Sandra Day O'Connor and then Kennedy, as well as accidental liberals like Ford appointee John Paul Stevens.
Those days are now conclusively over. As in so many other ways, the dire long-term consequences of President Trump's election are only just being felt. Unless the left succeeds in its long-odds battle to flip two Republican votes on this nomination, the stage is now set for Kavanaugh, and for the restoration of a hardscrabble, pre-New Deal United States, where the rights of corporations reign supreme, the federal government's ability to spend money on the general welfare is radically reduced, and the rights of women, people of color, and workers are shunted aside. Unless Democrats are able to win the next two elections and get radical about the courts, this grim scenario will be our only possible future.