The gloating begins
On Saturday, October 6, 2018, the Senate confirmed Brett Kavanaugh as an Associate Justice of the Supreme Court of the United States in the second closest margin recorded, 50-48. The gloating and victory dance have begun. For example, White House Press Secretary Sarah Huckabee Sanders tweeted on Sunday: “Congratulations Judge Kavanaugh! Instead of a 6-3 liberal Supreme Court under Hillary Clinton, we now have a 5-4 conservative Supreme Court under President @realDonaldTrump, cementing a tremendous legacy for the President and a better future for America.”
As per the usual, there are many misstatements in that tweet. Initially, the biggest correction is that the Supreme Court of the United States is not under any president, but rather is a separate third branch, and it is to serve as the final arbiter of Constitutional questions and not act as a political arm. Second, had Hillary Clinton been elected and had opportunities to nominate, there was noise from the Republican Senators that they would find reasons not to confirm any Clinton nominees – they would be Garlanded. Finally, had Clinton won, there likely would have been no Justice Anthony Kennedy retirement. On the final point, no one will know for sure what Kennedy would have done.
Tomorrow will be the beginning of a new Court, with Justice Kavanaugh taking a seat as the junior justice. The nation will be watching as he begins his tenure as a Justice of the Supreme Court of the United States. Matt Dowd tweeted (and stated on This Week) today: “I know kavanaugh and his wife ashley, they care about this country and are people of faith. I hope like St. Ignatius Loyola who founded the Jesuits, he goes through process of reflection and discernment and surprises the left and right, and seeks to heal the soul of America.”
We can hope that Dowd is right but should not be too optimistic that will be the case. The days of surprises are likely over and given the level of gloating that the Republicans are demonstrating, the ability to surprise seems rather limited.
Daniel is a lawyer writing and teaching about SCOTUS, and is the author of the book “The Chief Justices” about the SCOTUS as seen through the center seat.