Habemus Constitutionem -- President Trump's Choice of Brett Kavanaugh Has Cemented a Supreme Court That Will Be Safely Constitutionalist for a Generation

THE REAL NEWS TODAY IS ABOUT BRETT KAVANAUGH. On Monday evening, July 9, 2018, President Trump offered in nomination the name of the man who will almost certainly become the newest member of the US Supreme Court and the nail that closes the coffin of the activist period of Progressive Supreme Court majorities that began with the appointment of native Californian Earl Warren as Chief Justice by President Eisenhower in 1953. • • • THE WARREN COURT. Earl Warren led a liberal majority that used judicial power in dramatic fashion, to the consternation of conservative opponents. The Warren Court expanded civil rights, civil liberties, judicial power, and the federal power in dramatic ways. On May 17, 1954, Chief Justice Earl Warren delivered the unanimous ruling in the landmark civil rights case Brown v. Board of Education of Topeka, Kansas. State-sanctioned segregation of public schools was a violation of the 14th Amendment and was therefore unconstitutional. • As Attorney General of California, Warren had carefully scrutinized and then shut down activities that had formerly received intermittent attention such as prostitution, gambling, bootlegging, and speakeasies. After he gained support in his role and became a public figure, Warren ran for governor under the nonpartisanship theme and won in 1942. Warren’s early governorship was characterized by tax reductions, frugal spending, and the creation of revenue surpluses -- all marks of a conservative. Later in his career, he supported government involvement with the mentally ill, elderly, and those severely injured, which was a move toward the liberal side. This political stance fit with California Progressivism. Much like Warren, President Eisenhower was noted for his lack of partisan affiliation. After Chief Justice Fred Vinson died in September 1953, Warren became the likely choice as a successor because of his law enforcement experience. Eisenhower viewed Warren as a fellow moderate Republican and nominated him on the basis of affiliation with national politics. Warren was sworn in as the 14th Chief Justice on October 4, 1953. Chief Justice Warren retired from the Court in June of 1969. Since he was not attracted to national politics, however, his role as a “Republican” was not as predictive of his role on the Supreme Court as Ike had thought. • After the reaction to Brown v. Board of Education, Warren thought of the Court as a protector of the public, the means to restore ethics and mind the conducts of legislators. Warren led a liberal majority that used judicial power in dramatic fashion, to the consternation of conservative opponents. The Warren Court expanded civil rights, civil liberties, judicial power, and the federal power in dramatic ways. The Warren Court was both applauded and criticized for bringing an end to racial segregation in the United States, incorporating the Bill of Rights (that is, including it in the 14th Amendment Due Process clause), ending officially sanctioned voluntary prayer in public schools, expanding criminal procedure (the Miranda case and several others), strengthening free speech in New York Times Co. v. Sullivan, supporting the Establishment and Free Exercise Clauses of the First Amendment, defining theright to privacy and reproductive rights (Griswold v. Connecticut) and defining cruel and unusual punishment. The Warren Court is recognized as the highest point in judicial power that has receded ever since, but with a substantial continuing impact. Prominent members of the Court during the Warren era besides the Chief Justice included Justices William J. Brennan, Jr., William O. Douglas, Hugo Black, Felix Frankfurter, and John Marshall Harlan II. • The Warren Court did not view constitutional law as text alone; it was living. AND, that is why we call his tenure, even today, "the Warren Court," an appellation that makes conservatives shudder. • • • NOW COMETH BRETT KAVANAUGH. Brett Kavenaugh, if his history is father to the child, tells us that Brett Kavanaugh is everything that Earl Warren and the Warren Court were not. He will be President Trump's second nominee for the Supreme Court, cementing a decisive rightward shift on the nation’s highest judicial tribunal -- moving it far away from the activist Progressive Warren Court to a constitutionalist rule of law Court. In a prime time East Room ceremony at the White House, the President highlighted the selection of Kavanaugh, 53, as the fulfillment of a campaign promise to secure a "conservative" Supreme Court majority. President Trump quoted Leonard Leo, the Federalist Society’s executive vice president : “Brett Kavanaugh is among the most distinguished and respected judges in the country, with nearly 300 opinions that clearly demonstrate fairness and a commitment to interpreting the Constitution as it’s written and enforcing the limits on government power contained in the Constitution.” The President praised what he cited as Kavanaugh's "impeccable credentials, unsurpassed qualifications and a proven commitment to equal justice under the law." "There is no one in America more qualified for this position, and no one more deserving," Trump said. • Kavanaugh, a DC Circuit Court of Appeals judge, was a law clerk to the retiring Justice Kennedy in 1993, and was elevated to the powerful federal appeals court in the District of Columbia by President George W. Bush, under whom he had served as a White House lawyer and staff secretary. The Bush family connection has tainted Kavanaugh both for Trump conservatives and for Progressive Democrats. Some Trump supporters say he is too much of a DC insider and too closely associated with the Bush circle. Democrat Senate Minority Leader Chuck Schumer tweeted : "I will oppose Judge Kavanaugh’s nomination with everything I have, and I hope a bipartisan majority will do the same. The stakes are simply too high for anything less." Schumer also released a statement clarifying his resistance saying that by nominating Kavanaugh, Trump has endangered Americans' reproductive rights and health care protections, and that a confirmation would “take away labor, civil, and human rights from millions of Americans.” The New York Senator added that : “With this pick, the President is making good on his pledge to ‘punish’ women for their choices.” Schumer further used the Federalist Society and the Heritage Foundation’s approval of Kavanaugh to justify his stance, referring to the organizations “special interest groups devoted to overturning Roe and striking down the Affordable Care Act.” • President Trump may have been swayed in part because of Kavanaugh’s record of being a reliable conservative on the DC Circuit Court, where he reined in dozens of administrative decisions of the Obama White House. But, Fox News wrote on Monday : "There are some question marks for conservatives, particularly an ObamaCare ruling that signaled his implicit support of the law. In a 2011 case, Kavanaugh acknowledged in his dissent that the Affordable Care Act’s 'individual mandate provision' could fit 'comfortably within Congress’ Taxing Clause power.' His detractors say that language helped provide the road map for the Supreme Court to uphold the mandate a year later. However, supporters of Kavanaugh have pushed back against that argument. Justin Walker, a former Kavanaugh clerk, argued that the judge’s 'hypothetical discussion' about the Taxing Clause has been misinterpreted and is actually 'a road map to the conclusion reached by the dissenters -- that the individual mandate is unconstitutional under the Taxing Clause.” Further, it’s also unclear how Kavanaugh would rule on abortion, as he has never directly confronted the issue as a judge. Last year, Kavanaugh dissented from a decision allowing an illegal immigrant to receive an abortion, but pro-life conservatives have criticized him for not going far enough. Specifically, they have expressed concern about language where Kavanaugh wrote “the unlawful immigrant minor is assumed to have a right under precedent to an abortion.” UNDER PRECEDENT -- the key phrase that conservatives have chosen to ignore -- it means that under Roe v. Wade, the minor has a right to abortion. Kavanaugh said nothing about the constitutionality of the Roe decision itself. • The Trump administration announced earlier Monday that former Senator Jon Kyl of Arizona would guide the nominee through the Senate confirmation process. Before retiring in 2013, Kyl was a member of the Senate Judiciary Committee, which will be the first to consider the nomination. He now works for the Washington-based legal and lobbying firm Covington & Burling. The White House hopes Kyl's close ties to Senate Republicans will help smooth the path for Kavanaugh. In addition, the conservative group Judicial Crisis Network will launch a $1.4 million ad buy in support of Kavanaugh, running advertisements in Alabama, Indiana, North Dakota, and West Virginia where Democratic Senators are on the fence about supporting Trump’s nominee because of re-election worries. Republican Senators Susan Collins of Maine and Lisa Murkowski of Alaska, both of whom have been seen as most likely to vote against a Trump nomination, declined invitations to attend the White House ceremony, but they both voted to confirm Kavanaugh to the DC Circuit Court in 2006. • Judge Kavanaugh is also a professed admirer of the late Justice Antonin Scalia. Speaking at a conference on administrative law at George Mason University’s Antonin Scalia Law School, Kavanaugh called Scalia’s commitment to textualism and judicial restraint “profound and worth repeating often.” Social science metrics suggest the new justice would be a deeply conservative presence on the high court. One influential empirical measure, called a judicial common space score, places Kavanaugh to the right of Justices Samuel Alito and Neil Gorsuch, but to the left of Justice Clarence Thomas. And, as special counsel Robert Mueller’s investigation continues, President Trump may find it attractive that Kavanaugh has a sweeping view of executive power. Although he worked for Clinton investigator Ken Starr in the 1990s, Kavanaugh’s instincts were deeply affected by his service in the Bush administration. In a 2008 lecture at the University of Minnesota Law School, he argued sitting Presidents should be exempt from criminal indictment, civil suits, and investigations "for the extent of their tenure." • • • THE CONFIRMATION FIGHT AHEAD. Kavanaugh's 2003 nomination to the DC Circuit was met with intense opposition from Democrats, who stalled his appointment in the Senate for three years. Since joining the appeals court, he has developed a reputation as a text-focused judge who cares deeply about the separation of powers. Some of his best known opinions on the court have involved constitutional challenges to the structure of administrative agencies. In a 2008 dissent eventually upheld by the Supreme Court, Kavanaugh argued that the framework of the Public Company Accounting and Oversight Board (PCAOB) was unconstitutional because its members had stronger protections against termination than comparable officials. He reprised a similar argument in a 2016 opinion concerning the Consumer Financial Protection Bureau (CFPB), a pet project of Democratic Senator Elizabeth Warren of Massachusetts. In another notable Kavanaugh dissent, in a 2011 challenge to Washington DC’s ban on semi-automatic long rifles, Judge Kavanaugh argued the district’s ban on rifle possession and its stringent licensing requirements were unconstitutional in light of the Supreme Court’s 2008 DC v. Heller decision, which affirmed the constitutional right to possess firearms in the home for self-defense. • And, in what may be a hot button on both sides of the Senate -- religion and abortion -- one important ally for Kavanaugh on the religious right appeared just moments after the nomination was announced. Tony Perkins, president of the socially conservative Family Research Council, said Kavanaugh’s selection amounted to a fulfillment of Trump's campaign promises : “President Trump promised a constitutionalist -- someone who will call balls and strikes according to the Constitution,” he said in a statement on Monday night. “We trust the President that Judge Kavanaugh will fit this mold as a justice.” • Kavanaugh showed his own religious credentials during Monday night’s announcement, noting his association with Washington’s vibrant Catholic firmament. He struck a similar cord when he delivered the commencement address at Catholic University’s Columbus School of Law in May : “Being a graduate of this law school means you will have many advantages, but you also have responsibilities : serve meals to the homeless, give clothing to the poor, and use your legal training to help those who need legal help. As Pope Francis says, faith and values mean not just belief and going to Mass, but action.” • GOP Senator Chuck Grassley of Iowa, who chairs the Senate Judiciary Committee, said the chamber should move quickly to process his nomination, given the strength of his credentials and experience : “Judge Kavanaugh is one of the most qualified Supreme Court nominees to come before the Senate. His credentials are well known, and he’s served with distinction as a judge on the esteemed DC Circuit for more than a decade. He is a superb mainstream candidate worthy of the Senate’s consideration.” • Senator Orrin Hatch said : “I will lift heaven and Earth to see that he is confirmed.” • And, in a pre- announcement speech on the Senate floor on Monday, Senate Majority Leader Mitch McConnell attacked Democratic opposition to President Trump’s future Supreme Court nominee, citing Democrats’ historical panic at conservative SCOTUS nominees. McConnell said : "Back in 1975, they assailed the nomination of John Paul Stephens. They said he lacked impartiality and opposed women’s rights....So these far left groups have been at the same scare tactics for over 40 years,” McConnell said. “This far left rhetoric comes out every single time. The apocalypse never comes. No matter their qualifications, no matter their record, no matter their reputation, it’s the same hyperbole, the same accusations, the same old story. ” Some ProgDSems couldn't repsond to Mitch McConnell criticism for a rather odd reason -- one was Nancy Pelosi, who forgot McConnell’s name in an interview, and asked her aide -- ‘whatshisname, the one who’s the head of Senate?’ Will Nancy ever change??? Not before November, we hope. • In a much less comic situation, Fox News was forced to cancel a live show on the steps of the US Supreme Court to cover President Trump’s newest Supreme Court nominee because of unhinged protesters who made everyone feel unsafe. Shannnon Bream was standing on the Surpeme Court steps when she said : “Last year there were protesters and there was opposition to Justice Gorsuch. Tonight we saw something different. We did have a plan to have our show out there live. It got so volatile at points that we ultimately didn’t feel like it would be safe to do an hour of live television. Where are we?” Bream tweeted that she felt scared for her safety : “Very few times I’ve felt threatened while out in the field. The mood here tonight is very volatile....Literally had to bail on our live show from SCOTUS. Moving the show back to the safety of the studio.” In addition to protesting on the steps of the US Supreme Court, Trump-hating leftists protested outside Trump Tower in New York, even though the President wasn’t even there. • One person who was not in Washington or New York was Senator John McCain. The Senator from Arizona has been considered one of the Republicans who could prevent any new Trump Supreme Court nominee from being confirmed. But, last night, John McCain stepped up to the plate and hit one out of the park for the GOP when he tweeted : "Judge Brett Kavanaugh has impeccable credentials & a strong record of upholding the Constitution. He is widely respected as a fair, independent & mainstream judge. I look forward to the Senate moving forward with a fair & thorough confirmation process. https://www.mccain.senate.gov/public/index.cfm/press-releases?ID=F1BDBD24-577D-4545-BCB5-825282D6A04C …" That one tweet should be the reason no GOP moderate will choose to balk and vote against Kavanaugh's confrimation. • Add to McCain's tweet the comment of NBC's Chuck Todd, who called Kavanaugh "very confirmable." Todd said : “I think this is a pick that is a very confirmable pick. Brett Kavanaugh has already gotten the support once of the two moderate Republican Senators : Murkowski and Collins. So he’ll likely get it again.” • And, not that it matters much, but CNN was sticking to its anti-Trump Fake reporting. Jake Tapper said : “[Kavanaugh is] “a political operative” who works “in the worlds of conservative lawyers, conservative operators. And this is where I think it’s going to be very contentious in the Senate.” • Of course, by now, millions of Americans realize that the mainstream media is no longer objectively reporting the facts, but is pushing liberal propaganda masquerading as “news.” What Tapper or anyone else on CNN says is utterly irrelevant. • • • THE PROGDEMS BEMOAN TRUMP'S SUPREME COURT NOMINATION. But, in many ways, they ought to be blaming their own President, Barack Obama. He thought his legacy was safe, that another Progressive Democrat would be elected to follow him. So, Obama was sloppy about the details of leading his Party and nailing in place whatever he could -- just in case. One of the points of government that President Obama ignored was the Supreme Court. He pushed to get Progressive district court judges confirmed by the Senate, but he was seemingly uninterested in pushing for the same result at the Surpreme Court level. The most glaring example is Justice Ruth Bader Ginsburg. Justice Ginsburg is now 85. She was 75 when Obama took office. Why didn't he exert his power to persuade her to resign at some point when he could have named her successor -- using his direct influence or indirectly through other channels available to him, such as the other liberal justices, the Democrat Party leadership, former President Clinton, and perhaps the American Bar Association. Obama did none of this. Instead, he indolently loped along, unconcerned that he was leaving a possible ticking bomb behind in the Supreme Court if a Republican happened to win the presidency in 2016. Ginsburg, now 85, will surely leave the bench in the next few years, opening up the possibility that the Supreme Court will have an even greater conservative cast -- one that will very likely endure for a generation. And, if the Progressives are objective in their evaluation, they will admit that Barack Obama bears a large portion of responsibility for that. • Liz Peek wrote in American Thinker this week that : "In 2013, then-Senate Majority Leader Harry Reid, D-Nev., invoked the so-called 'nuclear option,' discarding traditional filibuster protections for the minority party in favor of requiring only a simple majority to approve judicial and executive branch nominees. He carved out an exception for people put forward for the Supreme Court. The next year -- with CNN describing President Obama as an 'unpopular President limping through his second term' -- Republicans reclaimed control of the Senate. As a result of that achievement, President Obama’s chances of securing a liberal majority on the high court all but disappeared. In the spring of 2016, Senate Republicans blocked a vote on Judge Merrick Garland, who President Obama nominated to the Supreme Court following the death of Justice Antonin Scalia. The Republicans said the looming election should allow Americans to decide which party’s president could appoint the next Supreme Court justice. Last year, with partisanship riding high in the Senate, Republicans extended Reid’s majority rule provision to include Supreme Court justices, clearing the path for confirming Judge Neil Gorsuch to become a Supreme Court justice. President Trump’s pick to take Justice Kennedy’s place will have to win a majority of Senate votes, which is no mean task.'...So, now ProgDems are wringing their hands over a possible overturning of Roe v. Wade, the 1973 Supreme Court decision that legalized abortion nationwide....[But] there is...little question that the Court will likely soon move to the right, and there is little Democrats can do about it....President Obama’s destruction of his Party has largely been ignored by Democrats, but his indifference to the future of the Supreme Court is an act of political malpractice impossible to ignore." • • • DEAR READERS, in addition to the ProgDem fears about Roe v. Wade, there are other recent Supreme Court conservative decisions that Democrats were helpless to stop -- Janus v. AFSCME (the American Federation of State, County and Municipal Employees) that could undermine the influence of public employee unions that generally support Democrats in elections, the upholding of President Trump’s travel ban on countries that pose a national security risk, and the ruling in favor of a baker who refused to produce a wedding cake for a same-sex couple because of deeply held religious beliefs and an anti-religion bias in the state agency that tried to force him to bake the cake. As Liz Peek writes : "These decisions and others hint at the influence of the new conservative Supreme Court, and the damage that will done to the Progressive movement." • Considering President Trump's choice of Brett Kavanaugh, I see two themes. First, Kavanaugh will be approved without a massive Roe v Wade fight -- while that worries social and evangelical conservatives, it is a plus going into the midterms, and there is little doubt that at some point, this new Supreme Court will have the right case with the right facts to send the abortion issue back to the state level where it belongs. Second, Kavanaugh is Justice Kennedy's replacement -- and although Kavanaugh may be labeled by some as a "swing vote," he will be 'swinging' to the right constitutionally. If he may occasionally vote with the liberals, I doubt it will be often or on issues that would take the Constitution away from its original meaning and place it on a Progressive "living" Constitution platform. • We can now say -- not "Habemus Papam" but "Habemus Constitutionem." After 65 long years, we have a Constitution and not a piece of paper that says whatever the activist Supreme Court decided it said. And, we can thank President Trump and only President Trump.