President Trump has selected Brett Kavanaugh to replace Anthony Kennedy on the Supreme Court. The Senate should confirm Kavanaugh, but Trump also missed an opportunity.
While we may never know why exactly Trump selected Kavanaugh over someone like Amy Barrett, we can assume that Trump was looking to avoid a confirmation fight. It is possible that Republican senators such as Lindsey Graham, Susan Collins, and Lisa Murkoswki would have voted against Barrett. By nominating Kavanaugh, Trump saved Democrats from themselves. During Barrett’s appointment hearings to the 7th Circuit in October 2017, Dianne Feinstein said to Barrett that, “The dogma lives loudly within you” as if that was either relevant or a bad thing. Most people would take it as a compliment. Kavanaugh’s Catholic faith will likely play a role in his confirmation hearings, but the hit pieces that were sure to follow a Barrett nomination would have given the country a sense of just how far Democrats were willing to go to resist Trump.
The Judicial Inquisition
Earlier in 2017, Bernie Sanders voted against Russell Vought’s confirmation to be deputy-director of the Office of Management and Budget because he alleged Vought to be an Islamophobe. Sanders’ evidence was that Vought once wrote that, “Muslims do not simply have a deficient theology. They do not know God because they have rejected Jesus Christ his Son, and they stand condemned,” which is Christian Theology 101.
Democrats have increasingly pushed the bounds of the No Religious Test Clause. By declining to nominate Barrett, Trump missed an opportunity to see how Democrats really feel about devout Catholics holding high positions of power. Christian Democrats are never accused of imposing a theocracy on the country when they cite the Sermon on the Mount as justification for more expansive welfare programs or more liberal immigration. But, any Christian who reads the Constitution and fails to see anything regarding abortion or same-sex marriage or believes in basic Christian theology is a potential theocrat and should be disqualified from certain, appointed positions in the federal government.
It’s Time to Remove the Ivy
For the record, Amy Barrett would have been a tremendous Supreme Court Justice; there were reasons to appoint her that went beyond “owning the libs.” Who knows? Maybe one day she will sit on the Supreme Court, but today is not that day. One of the most underrated qualities of a potential Justice Barrett would be that if she ever is appointed to the High Court, her Notre Dame law degree could hopefully start the process of de-deifying the Court by getting rid of this ridiculous idea that you are only qualified to sit on the Court if you got your law degree from Harvard or Yale. The quasi-deification of the Ivy League presence on the Court is the reason we are in our current situation where some on the left, from the cranks to the supposedly serious academics, have come out in support of court packing.
None of this should detract from Brett Kavanaugh. Conservatives will always worry that justices will go the way of David Souter. However, the more realistic concern today is that they will go the way of John Roberts. While Trump missed an opportunity to combine a legal win with a political win, a legal win is still good nonetheless. If Kavanaugh does not go the way of Kennedy by using poetry or “the mystical aphorisms of the fortune cookie,” he will be an improvement.