Supreme Court

Kavanaugh Is Well Within the "Mainstream"—but "Mainstream" Isn't Always Good

Claims that Kavanaugh is outside the legal "mainstream" are misguided, and mostly just reflect growing partisan polarization over legal issues. The real danger is not that we will have non-mainstream Supreme Court justices, but that some mainstream ideas are badly wrong.

|The Volokh Conspiracy |

Judge Brett Kavanaugh.

As Senate confirmation hearings begin for Donald Trump Supreme Court nominee Brett Kavanaugh, Democratic opponents of the nomination predictably denounce him as "outside the mainstream of legal thought" in the words of Connecticut Sen. Richard Blumenthal. Just as predictably, Republicans vehemently deny such charges. On this point, the Republicans are largely correct. Kavanaugh's views, as expressed in his numerous articles, speeches, and judicial opinions, are well within the mainstream of modern conservative legal thought. That includes some positions on executive power that I have serious reservations about, such as his excessive deference to executive power on national security issues, and support for an overbroad version of "unitary executive" theory. It also applies to the many Kavanaugh positions that I think are good ones. It is possible that something genuinely non-mainstream will be discovered in recently released records on Kavanaugh's service in the Bush White House. But I would be surprised if that were the case.

What is true of Kavanaugh is also true of virtually all other modern Supreme Court nominees: they too were in the mainstream of their respective parties at the time they were nominated. If they had not been, they probably could not have been nominated in the first place. That applies to Obama nominees Merrick Garland, Sonia Sotomayor, and Elena Kagan, and Bush nominees Samuel Alito and John Roberts.

President Trump has many deeply troubling positions on constitutional issues that fall well outside the parameters of mainstream legal thought. During the 2016 campaign, I feared that he would choose judicial nominees who reflect those views. Unlike most of my other fears about Trump, this one has so far not been vindicated. Kavanaugh is the kind of generally conventional respected conservative jurist who could easily have been nominated by Jeb Bush, Marco Rubio, or John Kasich, had one of them become president. The same is true of Trump's previous Supreme Court nominee, Neil Gorsuch.

If Trump's authoritarian nationalism becomes the new normal in GOP politics going forward, I still fear it will affect judicial nominations over time, as was true of previous ideological transformations within the major parties. But that hasn't happened yet, and I should have given more consideration to the fact that such transitions—when they do occur—usually affect judicial nominations relatively slowly.

The real issue at stake when political partisans claim that a nominee is out of the mainstream is that, as the two parties have become more polarized, they have also developed very different conceptions of what qualifies as mainstream legal thought in the first place. What I wrote about this in 2013 still applies today:

The underlying reality here is that there is a deep chasm between mainstream conservative views on constitutional interpretation and mainstream liberal ones. The standard-issue conservative Republican jurist believes that the Constitution provides extensive protection for gun rights and property rights, that the courts should enforce significant federalism-based constraints on Congress' powers, that all or most affirmative action programs violate the Fourteenth Amendment, that Roe v. Wade should be overruled, and that there is no general right to privacy in the Constitution. The standard-issue liberal Democratic jurist thinks that all of the above is wrong. Each side believes that the other side is not only wrong about some particular issues, but has a fundamentally defective approach to constitutional interpretation and the role of judicial review. Much of what the conservative mainstream believes about constitutional law is completely anathema to the liberal mainstream, and vice versa.

Yet both sets of views are clearly within the "mainstream" of their respective parties. And both also enjoy substantial public support.

Lost in all the posturing about whether a given nominee is "in the mainstream" is the possibility that being mainstream isn't always good. Historically, near all the worst Supreme Court decisions were well within the scope of mainstream legal thought at the time. Indeed, we have more to fear from mainstream but misguided Supreme Court justices, than from the occasional rogue "extremist." I covered some of the reasons why here:

[T]he painful truth is that most of the Supreme Court's worst decisions have not been the result of extremism, but of mainstream legal thought gone off the rails. That was true of horrible rulings like Plessy v. Ferguson, Korematsu v. United States, Buck v. Bell, and even Dred Scott v. Sandford, among others. And it was also true of Kelo [v. City of New London], and earlier precedents holding that almost anything can be a public use justifying the taking of property – precedents that ended up authorizing the forcible displacement of hundreds of thousands of people (most of them poor and politically weak). For the most part, the justices who voted for these decisions were not rogue extremists, but respected members of the legal establishment relying on mainstream reasoning and habits of thought.

A truly extreme, non-mainstream ruling is less likely to cause harm than a bad decision that comes about because the mainstream itself has gone bad. The former is unlikely to become widely accepted and more likely to quickly be overruled or limited in its impact. Moreover, the legal culture and the appointment and confirmation process for judges usually effectively screen out advocates of harmful non-mainstream ideas. By contrast, they actually amplify the impact of errors that have themselves become part of the mainstream.

Thus, my fears about some of Kavanaugh's positions on executive power are not that they represent crazy extremism (they obviously don't), but that they exemplify a common flaw of mainstream conservative jurisprudence. I have similar concerns about several aspects of modern mainstream liberal legal thought.

This also implies that it is not necessarily wrong for senators to vote against a mainstream nominee on the grounds that they believe his views on constitutional issues to be profoundly misguided, even if not "extreme." Each of the last five Supreme Court nominees (Alito, Sotomayor, Kagan, Garland, and Gorsuch) has been opposed by a large majority of senators from the opposite party on precisely such grounds, even though all five had strong professional qualifications, and all five held views within the mainstream of his or her own party. But the debate over these issues would be be at least somewhat more elevated if we spent less time arguing about whether a nominee is out of the mainstream (they almost never are) and more time considering whether some of their impeccably mainstream views might still be dangerously misguided.

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  1. Given the role of outside-the-White House organizations in suggesting judicial nominees to and vetting judicial nominees for Presidents, I’m not surprised President Trump’s judicial nominees have generally been competent mainstream conservatives. Honestly, I think he’s either willingly rubberstamping those orgnazation’s suggestions or they’re doing a good job steering him (“Mr. President, we’ve assembles these finalists but we need you to pick the winner”). Because at this point, whatever else he may or may not be good or bad about him, I think he’s been proven to be lousy at hiring people. He may be innocent of anything Mueller’s investigating but he’s been proven a bad hiring manager, and the dismal performance of his executive branch appointments (including the many replacements for his initial appointments) doesn’t instill me with confidence that left to his own devices he could pick a decent judicial nominee.

    1. Trump was somewhat handicapped, in that he came to Washington without extensive political experience, and so did not have a file folder full of potential nominees. So he had to take advice, and I think it can be said that the advice was NOT always coming from people who were favorably disposed towards him, even if they were nominally of the same party.

      I share your doubt that he could pick good judicial nominees on his own, but at least he knew he couldn’t, and delegated to the Federalist society, which is more than, (See my comment below.) you would normally expect of a Republican President.

  2. “Kavanaugh is the kind of generally conventional respected conservative jurist who could easily have been nominated by Jeb Bush, Marco Rubio, or John Kasich, had one of them become president.”

    I think you’re flattering those three; Republican Presidents have a very spotty record on Supreme court nominations, and expecting conservative nominees out of a particularly liberal Republican such as Kasich is somewhat unrealistic.

    1. Kasich is in no way whatever a “liberal,” even within the context of the post-World War 2 Republican party. He has nothing in common with Republican liberals like Javits or Case, and not that much with old-style Republican moderates like Hatfield or Percy. He is simply a conservative who, at least these days, prioritizes governing over ideological purity. Since that type of conservative is relatively rare these days, the ideological conservatives having largely taken over the party, some people make the mistake of mislabeling them as “moderates” or “liberals.”

      1. You’ve simply established that he’s a conservative by declaring whatever he does to be “conservative”.

        “Conservative” is a relative term. If the center of the party shifts, and you stay where you are, you can go from conservative to liberal, because you’re not being measured relative to some nonexistent fixed star, you’re being measured relative to where the rest of your party is.

        And I stick by my point, which is that it’s actually unrealistic to claim you’d get as good of nominations from those three. Trump’s nominations haven’t been typical of Republican Presidents, they’ve been better.

        1. But “conservative” and “liberal” aren’t just relative terms, they also refer to two different sets of policy positions and underlying philosophical beliefs. Moreover, to the extent that they are relative terms, it has to be in relation to the overall spectrum of political beliefs, not just the range of beliefs within one party or faction.

      2. “Prioritizing governing over ideology purity” or “Country over party” means caving to the left on everything of importance. Have you noticed that liberals NEVER “compromise?” I have.

        1. “Prioritizing governing over ideology purity” or “Country over party” means caving to the left on everything of importance.

          Because TEAM is more important than getting stuff done. Got it!

          Have you noticed that liberals NEVER “compromise?” I have.

          Someone didn’t read ObamaCare, I see.

          That entire mess was one giant compromise.

          1. Oh forgot the tag.

          2. “Someone didn’t read ObamaCare, I see. “That entire mess was one giant compromise.”

            Obamacare passed with zero Republican votes. The compromise therein was a compromise with political reality, not with Republicans. This “compromise” was furthered by the Obama Administration’s refusal to implement and/or enforce certain provisions, as well as “arbitrarily” changing the dates upon which certain provisions took effect.

        2. Politics and governing always involve compromises. This is especially true in the US political system, given the large number of veto points throughout the political decision-making process. Every major piece of liberal legislation in the past century has involved compromises–from the Social Security Act, through the Civil Rights Act of 1964, to the Affordable Care Act. Liberals who get elected to office, by and large, are always willing to make compromises.

          It used to be the case that conservatives who were elected to office were also willing to make compromises in order to govern effectively. Republicans like Governor Kasich and the late Senator McCain understood this, as did their forbears like Senators Dirksen, Baker or Dole or Reps. Ford, Rhodes or Michel. But today, more and more Republicans who are elected to office who value ideological purity above all else.

  3. Here are the policy positions of the “particularly liberal” John Kasich.

  4. With the burgeoning of so-called movement conservatism, and its takeover of the right wing mainstream, accustomed notions of the conservative mainstream have morphed into a rapidly moving target?and one showing ever-less similarity with earlier versions of conservatism. On that basis, I suggest that to be firmly in the mainstream of movement conservatism?as Kavanaugh seems to be?is to be far outside the mainstream of conservatism as it appeared only two or three decades ago.

    And notably, movement conservatives seem to prize that divergence. Apparently, they also strive to propel their ever-evolving politics up to an escape velocity sufficient to leave remnant traditional conservatives behind for good.

    This newly energetic thing in politics is not easy to characterize. It blends chaotically generous helpings of corporate plutocracy, politics of resentment, substantive due process, small government libertarianism, and dark-money political philanthropy, among others?to yield a mix that has shown itself capable to give birth to the Federalist Society, or to Trumpism. Or, as we have seen, to both at once.

    From a politics so protean and unmoored, it’s difficult to understand how an exponent accurately characterized as “mainstream,” could ever emerge.

  5. From a theatrics and P.R. perspective, at close of the day’s hearing I had three conclusions. (1) The Democrats bringing demonstrators into the room doesn’t accomplish much, although they may get short term mileage out of staged and totally misrepresented interactions with the nominee. Nor are the lengthy opening statements by all the august senators, which on the Dem side seem to require the elder statesmen and women to turn around and be prompted frequently by twenty-something aides as to where they are in their outrage, likely to reverberate in the public mind.

    (2) Republicans should be making more of the fact that Kagan worked for Obama in the same capacity that this nominee worked for Bush, but Obama provided zilch on that history. Republican Senators just can’t grasp the art of pushback.

    (3) All the world wonders how the McCain replacement from Arizona is really going to vote. As a former Senator with nothing at stake personally, the guy could cut a sweet well-hidden financial windfall on the deal and the Democrat mainstream media allies would guarantee him bulletproof legal protection for the rest of his days. They have the power to destroy overly righteous pipsqueaks merely armed with facts. They can crush you by ignoring your strong arguments and repetitiously ridiculing your slightest mistakes as if those were the substance of your case.

    1. Republicans should be making more of the fact that Kagan worked for Obama in the same capacity that this nominee worked for Bush, but Obama provided zilch on that history.

      No. She didn’t.

      Kavanaugh was White House Staff Secretary to Bush, and it is documents from that period that are being withheld. Kagan never held that job.

      Pay less attention to Fox in the future and you won’t spread lies.

  6. Most Americans and most Libertarians agree that a woman has a right to control her reproductive system without government interference, at least until a pregnancy advances to some significant extent, and this does not depend on her immigration status. Kavanaugh’s opinion in the teen-immigration abortion case is outside that mainstream, which views a 17-year-old as old enough to decide this for herself, regardless of her citizenship or immigration status.

    1. “Most Americans” don’t believe this girl should be in America in the first place.

      1. Given the stream of deplorable comments that you have offered here, I suspect that “most Americans” would not believe that you should be in American either. But the “girl” was, and you are too. The issue was how to deal with that.

      2. Given the stream of deplorable comments that you have offered here, I suspect that “most Americans” would not believe that you should be in American either. But the “girl” was, and you are too. The issue was how to deal with that.

  7. Kavanaugh Is Well Within the “Mainstream” — but “Mainstream” Isn’t Always Good
    Claims that Kavanaugh is outside the legal “mainstream” are misguided

    A whole lot better than a jurist who thinks themselves qualified because of their ethnicity and gender, which is what we would be getting from the other side.

    and mostly just reflect growing partisan polarization over legal issues.

    Sometimes partisanship isn’t bad, like if the other side is being taken over by self-declared socialists and fascists.

    1. Well, he’s no ‘wise Latina’, but I guess he’ll do.

      1. “Judge Kavanaugh, as you are aware, diversity is a major concern for SCOTUS. To increase diversity on the court, as a condition of confirmation, would you be willing to undergo a sex change operation and become the wife of Jesus Lopez?”

  8. Of course we should debate the merits of the “mainstream” views of the other party, but is a disagreement with such views a legitimate ground for voting against a nominee who holds them? All of this seems to be getting away from the real question that should be debated here — is Judge Kavanaugh qualified to sit on the Supreme Court? The best judges, in my view, are those who are most able to put aside political considerations and to decide cases by applying a jurisprudential approach based on principal. The current court appears to be drifting further and further away from such approaches, as the liberal-conservative split seems to dictate the outcome of an increasing number of the big cases. This in turn causes the public to view the court with an increasingly jaundiced eye, and weakens the court’s credibility as an impartial arbiter of legal questions. The question we should be asking, in my view, concerns the extent to which Judge Kavanaugh will be able to buck that trend.

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