For believers in the original meaning of the Constitution, the retirement of Justice Anthony Kennedy is a special yet perilous moment. For nearly 70 years, Republican presidents have committed repeated unforced errors when it came to making Supreme Court nominations. President Trump owes his successful capture of the GOP nomination in part to his covenant with conservatives that he would appoint only devoted constitutionalists to the nation’s highest court.
In dramatic fashion, Trump upped the ante by agreeing to pick from a list that would be made public for all to see, vet and scrutinize. It was as if James Madison was learning the “Art of the Deal”. It was equal parts political genius and a public change in strategy for a Constitution badly in need of restoration. And it helped ensure the eventual elevation of Justice Neil Gorsuch, who became the majority-making fifth vote in historic cases this term.
{mosads}The list assembled by Trump and his counsel Don McGahn — with the assistance of outside allies like Leonard Leo of the Federalist Society — is stellar. I have deep respect for Judge Amy Coney Barrett, a proud Notre Dame graduate, who showed grace during senate persecution for having the audacity to put her faith in Jesus Christ. Sen. Mike Lee (R-Utah) is making history in the Senate and quickly becoming a national thought leader. If he is not selected, he will be needed to train the next junior senator from Utah. Volumes could be written about all of them. But now it is time for the president to choose.
One person on the list, Judge Brett Kavanaugh, is unique. I worked closely with him for the first four years of President George W. Bush’s administration, and I saw his character, philosophy and temperament. I and many colleagues often sought his counsel. Kavanaugh is someone you can trust and someone you want assistance from when decisions need to be made and the issues are complicated.
I watched him digest thorny legal questions and respond with a calm compassion. Judge Kavanaugh was never rattled nor condescending. He was thoroughly decent and always respectful — well, maybe not always, as he has a wry sense of humor and loves to poke fun, even at himself, often followed by a choppy, contagious laugh. Judge Kavanaugh’s collegiality made me like him, but it was his steadfast commitment to principle that earned my respect.
Too many times, conservatives have been burned by Supreme Court nominees who lack a judicial record that demonstrates their approach. But if you want to know why Brett Kavanaugh is the best choice for the Supreme Court, all you have to do is look at his record. Over his 12 years on the D.C. Circuit, Judge Kavanaugh has consistently, boldly, and fearlessly applied textualism and originalism to a striking range of legal issues. Even more impressive is that, during the past decade, the Supreme Court has adopted Kavanaugh’s position an astonishing 11 times. He literally wrote the book on judicial precedent, with Justice Gorsuch as one of his co-authors. No one else on the president’s list comes even close to that level of influence.
There are many examples of Kavanaugh’s willingness to take a stand. In a major Second Amendment case, he dissented from a decision that upheld a ban on semi-automatic rifles. (Justice Thomas has repeatedly cited that opinion in his own writings.) Kavanaugh struck down campaign spending limits on non-profits. He dissented from a decision that upheld the ObamaCare contraceptive mandate. He explained that public prayer at official government ceremonies is constitutional. And he sided with the Trump administration in a high-profile abortion case, dissenting from what he called a “radical” majority opinion that invented “a new right for unlawful immigrant minors in U.S. government detention to obtain immediate abortion on demand.”
One could go on. But the point is clear: Judge Kavanaugh’s demonstrated record of bold constitutional conservatism means we don’t have to be told or to take on faith how he will make determinations. His more than 300 written opinions reveal his trust in the words of the Constitution and its application to government actions.
I want to hit the critics head-on. A few conservatives have raised concerns that Judge Kavanaugh will be “another John Roberts,” who sounds great but lets down conservatives in the end. Other than the fact that both sat on the D.C. Circuit (where Justices Scalia and Thomas also sat), the Kavanaugh-Roberts comparison is completely misplaced. When Roberts was nominated to the Court, he had a short judicial record that included few significant opinions. Kavanaugh’s 12-year record includes dozens of textualist and originalist opinions. Kavanaugh is not another Roberts; he’s another Scalia, Alito, or Gorsuch. In fact, on issues such as reining in the administrative state, he is arguably more conservative than even those three highly regarded justices.
Brett Kavanaugh is my friend, and I wish him a meaningful life. Being nominated to the nation’s highest court will test his character, burden his beautiful family, and create many inconveniences. I know he is up to the challenge, and I know he is the type of person in whom the president will take pride.
If Brett Kavanaugh gets the nod, I believe he will be confirmed, with many Democratic votes. (Judicial activism, it turns out, is actually not all that popular.) Americans will rally behind Kavanaugh because they will learn what I already know. In Kavanaugh, the nation will have a justice who is versed in the law, respectful to those around him, and unafraid to do his duty, which is to uphold the Constitution and nothing — absolutely nothing — more.
Matt Schlapp is chairman of the American Conservative Union and CPAC. He was the White House political director to former President George W. Bush. Follow him on Twitter @mschlapp.