Defining Ideas

Progressives Come After Brett Kavanaugh

Monday, July 16, 2018
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Two different lines of attack have been launched against the nomination of Judge Brett Kavanaugh, now of the Court of Appeals for the District of Columbia Circuit, to replace Anthony Kennedy on the United States Supreme Court: one personal and one substantive. On the former I have little to say, except to note Yale Law School Professor Amy Chua’s glowing endorsement of Kavanaugh in the Wall Street Journal. Of far greater importance is the attack on his intellectual orientation, both generally and as it relates to specific issues that have come up already, and that will surely come up again before the Supreme Court.

On these issues, the progressive forces aligned against Kavanaugh have given no quarter. The chief object of their intellectual denunciation is the Federalist Society, with whom I have been actively involved since its formation in the early Reagan years. The great success of that organization, as the New York Times columnist David Brooks has recognized, is its single-minded devotion to a long game in which the study of first principles is the main object of intellectual inquiry. The basic insight is that every political movement needs strong intellectual foundations to insulate it from the passions of the day, and that the free exploration of ideas is the best way to achieve that end. The Federalist Society took off in the early 1980s precisely because the dominant liberal ethos of the time was so sure of its political and moral invincibility that it had not taken the time to develop its own comprehensive view on the fundamental relationship between the individual and the state.

Nothing much has changed since then. The utter absence of that foundational work is evident from the legal left’s unthinking and overwrought denunciations of Kavanaugh’s nomination. To indignant progressives, no candidate of libertarian or conservative persuasion is fit for a seat on the Supreme Court. That much is evident from the juvenile criticisms of the Kavanaugh nomination by a group of progressive senators who fear he will undo much of the modern New Deal state. In a similar vein, a group of Yale Law School students and alumni announced that they were “ashamed” of their institution and its Dean, Heather Gerken, for praising a nominee whose positions they found utterly unacceptable because, among other things, Kavanaugh penned “a 2015 dissent arguing that the ACA’s contraceptive mandate violated the rights of religious organizations, even though those organizations were granted an accommodation that allowed them to opt out of providing contraceptive coverage.” Michael Waldman, the President of the Brennan Center for Justice, described his nomination as “an alarming day for the law of democracy” because “the Roberts Court has been activist, relentless and destructive,” citing as support the rulings in Citizens United v. Federal Election Commission (2010) dealing with corporate speech and Shelby County Alabama v Holder (2013) “gutting the Voting Rights Act.” To New Yorker commentator John Cassidy, Kavanaugh is “an ‘extreme nominee’ whose confirmation would represent an imminent threat to Roe v. Wade and the Affordable Care Act,” and should be rejected by anyone “who harbors a sense of fairness and history.”

What is striking about these denunciations of Kavanaugh is that they are simple assertions treated as self-evident truths. The examples I have chosen are not entirely random, but they represent cases in which the progressive view is, to my mind, subject to serious, often fatal, criticisms. In taking these positions, I do not want to sound like a conservative or libertarian apologist. Thus, I have long taken issue, for example, with Justice Antonin Scalia’s opinion in District of Columbia v. Heller (2008). The second Amendment did not apply District of Columbia, but it does prevent the federal government from taking over the regulation of the state militias to the extent that these had been reserved to the state. But I would certainly not vote to block confirmation of any judge who disagreed with that position.

What is noticeable here, rather, is that the progressives always overstate their case in the effort to get maximum political leverage. Thus the Yale students and alumni misconstrue Judge Kavanaugh’s position with respect to the contraceptive mandate that was struck down in Hobby Lobby v. Burwell (2014) and in Zubik v. Burwell (2016). The objection religious organizations had to the contraceptive mandate was that it forced them either to pay for practices that they deemed against their religious beliefs or to authorize the government to collect money for such practices from their insurance companies, while preventing the insurance companies from directly recovering the costs from the affected institution. These religious groups never objected to the government funding the expenses of contraception for the affected women out of general revenues. But they did object to having to authorize their insurance companies to pay the bill. Why progressives think that antidiscrimination law always trump good-faith claims of freedom of religious conscience is something that they have never effectively explained.

Likewise, Michael Waldman utterly fails to see that there are two sides to Citizens United. The First Amendment protection for freedom of speech is perfectly general, and there is no reason why it should not apply to an incorporated political organization if it applies to all of its individual members. The usual protections against defamation and fraud are fully applicable, but it takes a perverse form of originalism to assume that modern corporations—newspapers excepted—have no First Amendment protection because they were uncommon at the time of the Founding, or, worse, that the federal government could somehow condition the right of any group of potential shareholders to form a corporation on their willingness to surrender their First Amendment rights. Nor can anyone say that a provision that prevents “corporations from running television commercials for or against Presidential candidates before a primary” (as McCain-Feingold, the law invalidated by Citizens United, did) is not a prohibition on the very kind of core political speech that warrants maximal constitutional protection.

Nor does Shelby County “gut the protections of the Voting Rights Act,” whose preclearance provisions were intended to stop electoral abuse before it started. No one, least of all Chief Justice Roberts, questioned that the Voting Rights Act of 1965 was necessary to overcome the massive denial of voting rights that existed in the segregated South when it was passed. But this is no longer the case today; indeed, in five of the six southern states covered by the VRA, black electoral participation exceeded white in 2012, the year before Shelby County was decided. But today’s civil rights movement needs to deny that any progress on racial issues has been made in order to keep its flame alive, even if those exaggerated claims of ongoing oppression only inflame racial tensions. So the unfortunate progression in voting rights laws was that Congress would add ever-greater restrictions to the preclearance conditions, and mandate them for longer periods of time with each VRA renewal, even as the influence of segregationist practices became ever weaker. By the time of Shelby County, the misfit between the supposed wrong and the remedy had become a chasm. The Chief Justice was right to rein the expanded statute in.

New Yorker writer John Cassidy is every bit as hyperbolic. Roe was hardly a model of constitutional precision. Without any clear textual warrant, it managed to overturn the abortion laws of almost every state in the union on theoretical grounds that have yet to be established. The progressive movement has taken great pride in declaring Lochner v. New York (1905) as wholly illegitimate because it struck down a ten-hour maximum law on the grounds that it infringed the freedom of workers and employers to contract. But the ostensible commitment to judicial restraint was pushed to one side in striking down all these laws, even as newer legislation had started to loosen traditional restrictions. As a textual, historical, or structural matter, Roe, not Lochner, was at the time wholly indefensible. But 45 years later, any court should be reluctant to tamper with a decision like Roe that has the broad support of close to two-thirds the population. But if it did, the response from state legislatures and state courts would be quite powerful. I would not overturn Roe today, and I have no idea what Kavanaugh thinks about the issue. But it is simply specious to claim that those who favor overturning the decision are acting out of some deep-seated antagonism toward pregnant women. Larger principles of fidelity to the constitution are also in play.

And what can anyone say about Obamacare? The effort of Chief Justice Roberts in NIFB v. Sebelius to salvage the constitutionality of the Act under the taxing power while claiming that it falls outside the scope of the commerce power is unconvincing. Taxation and regulation are close substitutes for one another, and earlier case law in the Child Labor Tax Case (1922) offer strong support for holding that the two should be read in pari materia (of the same stuff), so the statute could have been struck down. At a more fundamental level, Roberts refused to take on the wildly expansive vision of the commerce power under Wickard v. Filburn (1942) (which allowed the federal government to regulate the consumption of wheat on one’s own farm). So the constitutional questions are hard under current law. But why would anyone want to defend furiously a statute whose flawed design, wholly apart from the individual mandate, offers a set of unsustainable benefits and defective pricing schemes that have led to the adverse selection death cycle that its proponents said would never happen? To be sure, the Republicans botched the transition away from the current scheme, but that is hardly a reason to draw a line in the sand to protect a statute that desperately needs repair.

These debates can of course continue indefinitely, and so they should—but not in connection with the Kavanaugh nomination.