The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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.
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, nearly 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.
