My readers know me as an outspoken Never-Trump Republican who has emphatically repudiated President Donald Trump’s policies, appointments to Cabinet positions, character, and behavior. So my enthusiastic support for his nomination of Brett Kavanaugh as an Associate Justice on the United States Supreme Court will appear to be inconsistent with my previous positions.
Furthermore, my endorsement of the Kavanaugh appointment comes at a time when my criticism of Trumpian foreign and domestic policy has increased in both intensity and scope. During the past month, Donald Trump has governed in a way that can best be described as profoundly anti-Reaganite. Naturally, this would result in emphatic criticism from Reaganites like myself. An explanation of the difference in my Reaganite views from the anti-Reaganite perspective of Trump is in order here.
On foreign and domestic policy matters, I am a traditional conservative in the mode of Edmund Burke respect for institutions, John Locke support for liberty and property, Milton Friedman advocacy of free markets, and Elihu Root conservative internationalism. These philosophies formed the underpinning of Ronald Reagan presidential policies, including support for broadened free trade, increased legal immigration, a stronger NATO and American alliance with the European Union, and deregulation without endangerment of the environment.
So even without the questions of character and ethics surrounding Trump, it would be natural for a Reaganite like me to become one of his most severe critics. Trump’s policies of cruel, xenophobic, and inhumane resistance to legal immigration, attacks on NATO, trade wars, defamation of the FBI and the Justice Department, and servile appeasement of Russia all together constitute the antithesis of Reaganism.
Yet there is one area of Trump governance that is compatible with Reaganism, namely, judicial appointments. We adherents of Reaganism believe in the principle that judges should focus on interpreting statutes and Constitutional provisions, based upon the original understanding of their text, rather than legislating from the bench.
While Trump has rejected Reaganism in the areas of foreign policy and economic governance, he has basically accepted the “strict constructionism” of Reagan jurisprudence. That is why I have endorsed for confirmation virtually all previous Trump judicial appointments, including Supreme Court Justice Neil Gorsuch.
And that explains why I enthusiastically support the appointment of Brett Kavanaugh to the United States Supreme Court. He is an individual of superb judicial insight, ethics, and temperament, as demonstrated by his service as a judge on the Court of Appeals for the District of Columbia circuit. While one can dissent from his judicial philosophies, nobody can rationally deny his fitness and competency for the Supreme Court.
The Senate Democrats plan to vigorously contest his confirmation, based upon his judicial philosophy, and they have a right to do so. Yet one would hope that they be truthful in describing his record and philosophy. The forthcoming debate should not become a replay of the 1987 Senate hearings on Reagan’s nomination to the Supreme Court of Robert Bork. In those hearings, liberal Democratic Senators shamefully distorted the record and character of Bork, one of American history’s great legal scholars and jurists.
Thus far, however, various Democratic Senators and critics have, in three areas already begun the process of attempted “Borking” of Brett Kavanaugh.
The first is in the area of Roe v. Wade, in a case where Kavanaugh ruled with the majority to deny release from the shelter of an illegal undocumented minor from Central America for the purpose of obtaining an abortion. Contrary to liberal allegations, in no way did Kavanaugh’s decision involve a negation of Roe v. Wade. Rather, his decision was based on the fact that the woman was a minor and not a citizen, rather than any denial per se of the right to choose as afforded by Roe.
The second is in the area of ObamaCare, where Kavanaugh dissented from a court decision upholding the individual mandate of the Affordable Care Act (ACA). His dissenting opinion, however, did not claim that the ACA was wrongful or unconstitutional. Rather, his opinion asserted a lack of jurisdiction of the court, based upon the fact that 1) the individual mandate was actually a tax; 2) no attempt had yet been made by the federal government to enforce the mandate as a tax collection matter, and therefore, the case was not yet “ripe.”
Ironically, Judge Kavanaugh’s assertion that the individual mandate was a tax and not a penalty became the basis of the decision of Chief Justice John Roberts that the ObamaCare individual mandate WAS constitutional!
The third liberal distortion of the Kavanaugh record is in the area of presidential immunity from criminal investigation or civil law suit. The claim of certain liberals that Kavanaugh has asserted such a presidential right of immunity is outright false. In fact, as noted by the distinguished liberal journalist, Benjamin Wittes, the reverse is true. Kavanaugh has stated that such presidential immunity does NOT presently exist. Such immunity could only be accorded if Congress passed an act according it. Kavanaugh has only stated that Congressional passage of such legislation should be considered.
A healthy debate on the judicial record of Judge Brett Kavanaugh would be most beneficial. I only would hope that such debate involves accurate factual assertions and that distortion be avoided. Judge Brett Kavanaugh is a man of goodness and greatness, and if confirmed, he will be an outstanding Supreme Court justice in the tradition of the late Antonin Scalia.
Alan J. Steinberg served as Regional Administrator of Region 2 EPA during the administration of former President George W. Bush and as Executive Director of the New Jersey Meadowlands Commission under former New Jersey Governor Christie Whitman.