Merrick Garland and Brett Kavanaugh: Two Peas in a Pod?
Many conservatives cheered Judge Brett Kavanaugh’s confirmation to the Supreme Court, convinced his presence will turn the tide toward liberty.
For the first time in decades, “conservatives” hold a firm majority of SCOTUS seats. We’re told the newly configured court will stop the steady leftward creep of constitutional law. It will reverse past unconstitutional decisions. And it will move the country back toward the limited government vision of the founding generation.
But will it really? Can we really count on a politically connected lawyer appointed to a federal court to rein in the overreaching federal government just because he’s supposedly a “conservative Republican?
If history serves as an indicator, not likely.
Keep in mind it was Republican appointee John Roberts who told us the federal takeover of health care known as Obamacare was constitutional. And the majority of the justices who gave us Roe v. Wade were Republican appointees.
But this time is different, so I’m told. Kavanaugh is a “real” conservative. In fact, the Washington Post tells us “It’s hard to find a federal judge more conservative than Brett Kavanaugh.”
So, how different is he, really? As it turns out, not very. About 7 percent to be exact.
Brett Kavanaugh served on the U.S. Circuit Court of Appeals for the District of Columbia together with Obama SCOTUS appointee Merrick Garland. Remember him? He was the “liberal” judge Republicans blocked from confirmation. Well, Garland and Kavanaugh voted together 93 percent of the time while they were colleagues on the appeals court.
Sen. Ted Cruz brought up this fact during Kavanaugh’s confirmation hearing. According to the senator, Judge Garland joined 27 out of 28 opinions written by Judge Kavanaugh, while Judge Kavanaugh joined 28 out of 30 of Judge Garland’s opinions.
When asked about this during the hearings, Kavanaugh said it was because both he and Garland approach the law as written without interjecting their own personal preferences.
“I think we are trying hard to find common ground and as I’ve said before, he is a great judge,” Kavanaugh said. “Those statistics reflect the reality of how judges go about their business.”
In other words, they go about their business agreeing with each other most of the time. This should come as no surprise. They go to the same law schools. They travel in the same social circles. They hold the same fundamental beliefs about the Constitution and law. Sure. The liberals and conservatives are different. About 7 percent different.
And we’re supposed to depend on this guy to “save the republic?”
Unlikely.
Constitutional law has very little to do with the Constitution. Precedent primarily drives legal decisions in federal courts, not the Constitution as ratified. Once an unconstitutional concept becomes enshrined in legal jurisprudence, it lives there forever. “Constitutional conservatives” almost always defer to the precedent, not the original understanding of the Constitution. Just consider Justice Anton Scalia’s acceptance of the incorporation doctrine despite his misgivings about “substantive due process” as an original matter.
“I have acquiesced in the Court’s incorporation of certain guarantees in the Bill of Rights because it is ‘long established and narrowly limited.”
That’s what federal judges do. They acquiesce. They follow precedent. Even bad precedent. This explains why the vast majority of constitutional law is totally unconstitutional. It’s also why I have no faith a new Supreme Court justice will “fix” anything, much less “return us to the Constitution.” The truth is the even “the best” Supreme Court judges constantly get things wrong because they embrace the opinions of past judges who drastically expanded federal power through bastardizations of the commerce clause, the general welfare clause, the necessary and proper clause, and many other constitutional provisions.
And Kavanaugh ranks far behind “the best.”
Now, he might turn out to be good on some things. And sure, he will probably do better than whomever Hillary would have nominated – at least 7 percent better. But when it comes to executive power, the Fourth Amendment and war powers, we know Kavanaugh is awful. As just one example, he was intimately involved in the passage of the Patriot Act. He called it a “measured, careful, responsible, and constitutional approach…”
This magnifies the absurdity of thinking the Supreme Court will ever “get us back to the Constitution.” You’re foolish to think a branch of the federal government will ever limit the federal government. At best, the Kavanaugh court will maintain the unconstitutional status quo. And more likely, it will continue to get worse and expand federal power. After all, there is only a 7 percent difference between the conservative and the liberal. That’s not much to bank on.
