01:17, July 10 98 0 theguardian.com

2018-07-10 01:17:07
If Trump challenges the constitutional order, will Kavanaugh defend it?

Conservatives are rightly jubilant with Trump’s choice of Brett Kavanaugh – Kenneth Starr protégé, conservative operative and federal appellate judge – to replace retiring Justice Anthony Kennedy in the US supreme court.

Had Republicans not obstinately blocked Obama’s own supreme court nominee, Merrick Garland, in 2016, the choice of Kavanaugh would be less consequential. Garland, an eminently qualified centrist, would be concluding his second year as an associate justice on the supreme court. A progressive-centrist majority of Breyer, Kagan, Ginsburg, Sotomayor and Garland would now control the court.

Instead, we are now looking at the five-man majority of Thomas, Alito, Roberts, Gorsuch, and Kavanaugh. This will constitute the most conservative bloc of justices since the early years of the Roosevelt administration, when a hidebound group of justices struck down crucial pieces of New Deal legislation designed to ease the suffering of millions during the Great Depression.

Anchoring this conservative bloc is Thomas, less a jurist than a rigid and embittered ideologue who seems to carry a personal grudge against progressive causes; and Alito, a small-minded jurist whose opinions show more concern with the social ostracism endured by conservatives than with hatred directed against gay couples.

Trump will take the bows for this sharp rightward swing, but the credit belongs to Senate Majority Leader Mitch McConnell. It was McConnell who, in the days after the death of Antonin Scalia, engineered the ploy to deny Judge Garland a hearing and so upended the constitutional process by which the president nominates persons to the supreme court. Having abandoned all pretense of principled governance, McConnell dared voters to make him and his party pay a political price for this act of constitutional defiance. Instead he was handsomely rewarded with a president he holds in contempt but sees as a useful vehicle for transforming the federal judiciary.

Still, McConnell’s victory may not be Trump’s. As he introduced Kavanaugh at the White House, Trump paid lip service to the rule of law, judicial independence, and constitutional restraints on power – the very values he spends most of time working to undermine.

In Poland, another ruler of authoritarian bent, Jaroslaw Kaczynski, leader of the Leaw and Justice Party, has launched a frontal assault on that nation’s Supreme Appellate Court. By lowering the mandatory retirement age of judges to 65, Kaczynski aims to stack the court with party hacks and loyalists. The president of the Supreme Court Malgorzata Gersdorf, who is 65, has refused to resign, declaring: “I’m doing this to defend the rule of law and to testify to the truth about the line between the Constitution and the violation of the Constitution.”

Poland’s experience reminds us that’s there’s more at stake in Kavanaugh’s appointment to the supreme court than the future of abortion rights or affirmative action, crucial as these matters are. Weighty questions may face this court: whether a president can ignore a subpoena; whether a president can pardon himself; whether a sitting president can be indicted. Such questions, should they need to be settled, will challenge the legitimacy of the Court as a guardian of the constitutional order.

These are the issues by which to test Kavanaugh’s suitability as a Justice. While it is true that Kavanaugh published an article nearly a decade ago arguing that presidents should be exempt from “time-consuming and distracting” lawsuits, he has likewise argued for dramatically narrowing the scope of executive privilege. Indeed, the very track record that makes Kavanaugh profoundly distasteful to Democrats – his years devoted to the impeachment of President Clinton – suggests that he might have limited tolerance for Trump’s efforts to denigrate and defeat constitutional processes.

In Federalist Papers 78, Alexander Hamilton memorably described the Supreme Court as the “least dangerous branch.” Lacking power over both the sword and purse, the court’s most precious endowment remains its legitimacy – the perception that as the branch of government largely insulated from the political fray, it can operate as a neutral defender of the Constitution.

Neutrality, of course, is the trait that most unnerves President Trump. Any person, organization or institution that seeks to neutrally assess his exercise of power becomes the instant object of the president’s calumny and insults. Kavanaugh, we may hope, will work to resist his nominator and to preserve that neutrality.

  • Lawrence Douglas is the James J Grosfeld Professor of Law, Jurisprudence and Social Thought, at Amherst College
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