Kavanaugh: Disaster or Opportunity?


Phoebe Shi '19

Anthony Kennedy and Brett Kavanaugh.

The Supreme Court is arguably the most powerful national institution; justices’ immense authority coupled with lifelong terms allow a small group to influence American society for generations after their time on the bench. Any change in its makeup consequently has far-reaching effects – the future of the Supreme Court is inextricably linked with the future of the country itself.

The Trump presidency could make the court conservative for years to come, depending on how many vacancies arise in the coming years. It is impossible to know the specific judicial ramifications of such a sway, but it certainly could threaten many important precedents.

Judge Brett Kavanaugh, Trump’s nominee for Justice Kennedy’s seat, has solid credentials as a scholarly-minded pro-business conservative. He is without a doubt a qualified judge, having served as a circuit judge in the D.C. Court of Appeals since 2006 and as White House Staff Secretary under George W. Bush. There is very little concern that he will make irrational or uneducated decisions; instead, opponents fear that he will alter precedents and make new rulings on colossal issues such as abortion, environmental regulation, labor, health care, and more. Democrats and progressives are fearful that a clear conservative lean on the bench presents a dangerous threat to their agenda.

This fear is somewhat exaggerated. It is very unlikely that Kavanaugh and the other conservatives will actually wind up overturning major precedents like Roe v. Wade. Democrats are using this fear of the destruction of legal protection for abortion and gay marriage to whip up more anger and fear ahead of the midterms; this nomination is yet another would-be catalyst of the blue wave.

Democrats’ fear is nevertheless understandable because Kavanaugh will probably craft new precedents in areas like environmental regulation, consumer protection, and other business-related sectors. Judge Kavanaugh is staunchly pro-business and a clear conservative; the vote of his seat would wind up being the swing on many crucial issues, and over his term, he will have a lasting impact, particularly if he works in tandem with fellow Trump-appointee Neil Gorsuch, the orginialist conservative justice sworn in last year.

Democrats are facing a tough fight. Although Kavanaugh’s nomination might not have immediate, shocking consequences, a solidly conservative majority on the Supreme Court could do serious damage to the progressive cause. President Trump has been extremely lucky to have had these nominations – they could be his most poignant legacies.

Both his picks have been highly qualified judges with impressive records and credentials. Their opinions will be sound and rational, that much is certain. Thus, there is little to latch on to in terms of attacking Kavanaugh; he is clearly qualified for the job. Instead, it might be far more effective for Democrats to attack what Kavanaugh might do, and not what he has already done. Dramatic proclamations of impending doom and catastrophe are usually pretty good motivators for getting people to the polls.

It’s impossible to say specifically how the shifting balance of the Supreme Court will affect the nation; it’s unlikely anything will drastically change. However, even the possibility of such change will be turned into a desperate rallying cry. If Kavanaugh cannot be stopped from taking a seat on the bench, he may be able to help Democrats take back Congress. Kavanaugh will not cause the civil liberties armageddon that the left wing fears. However, that fear, if encouraged shrewdly, will be instrumental in a progressive wave in November.