Earl Ofari Hutchinson
Barring another unforeseen twist or turn in the Kavanaugh saga, Senate Majority Leader Mitch McConnell will get his way and there will be some kind of vote on his confirmation. So, if that happens the almost as hotly debated question about Kavanaugh’s sexual proclivities, drinking and lies, is what kind of SCOTUS judge he’d be. The one thing for certain is that he’s the long salivated over 5th vote McConnell, Trump, and ultra-conservatives have wanted on the high court for years. He’s expected to speed rush their agenda on everything from torpedoing Roe v. Wade to giving the company store to corporations and the financial industry.
However, things aren’t always as cut and dried when it comes to which way a judge will go once firmly ensconced on the high court. This well may be the case with Kavanaugh too. There are several ways that Kavanaugh could go. One is the most obvious and expected. He will dutifully provide the 5th vote to further gut labor protections, the Voting Rights Act, scuttle regulations on financial industry, further hack environmental rules, and scrap Roe v. Wade. If Trump ever winds up in a court docket, he could rule that a sitting president is immune from prosecution. The checklist of his extreme, right-wing reflexive rulings and opinions and writings, and speeches give every reason to think this will be the kind of SCOTUS judge he’ll be.
This is exactly the kind of judge Clarence Thomas has been. He went through a brutal confirmation ordeal to get confirmed. He made clear that he wouldn’t forget the torture liberals and Democrats put him through and swore revenge from the bench. He’s been as good as his word.
Yet, that may not hold true for Kavanaugh in toto. To the horror of presidents—usually Republicans—who handpicked them, some SCOTUS judges have shown more independence on key cases before the court than expected. The list of such judges stretches from Earl Warren to David Souter. There’s been a pack of other judges that have occasionally broken from conservative orthodoxy to vote counter to the party line and wishes.
SCOTUS Chief Justice John Roberts is a recent example of that when he stoked the fury of the ultra-right by casting the deciding vote to uphold Obamacare. Judging from his writings, speeches and action as a legal hit man with the Reagan administration, he would have been the last judge one might have expected to veer from the GOP’s relentless effort to scrap Obamacare.
There’s another possibility with Kavanaugh. Despite his fond wish to loyally do the right’s bidding to shove through its agenda, he may not be able to. Kavanaugh’s blatantly partisan writings on several hot button issues involving the executive power will almost certainly leave him wide open to loud demands that he recuse himself from cases that even remotely touch on these issues. The Trump matter is the obvious case in point. His writings contending a president could be exempt from prosecution has been repeatedly cited and lambasted. There’s also his appellate court rulings on religious discrimination to the Obama-era Clean Power Plan and appeals by Guantanamo detainees.
Kavanaugh almost certainly will fight tooth and nail to slither out of any recusal call. However, that call will be made, and his refusal to stand down will again cast a deep public glare on just how much of a “neutral arbiter” he can really be in cases where he’s already tipped his hand and shown bias.
This will present another dilemma for Kavanaugh. No matter how much he marches in lock step to the hard-right orthodoxy on the high court, he’ll be the most watched, scrutinized, and second-guessed judge that has hit the SCOTUS in decades. He’ll be there with the full knowledge of legions that his vote on a deeply divided court is the one vote that counts more than any other on the major issues.
Whether, that knowledge and the force of intense media scrutiny and public opinion will mean much to him can’t be determined until those tough and divisive cases wind up on the court’s calendar. Yet, this scrutiny can’t be cavalierly waved off as meaningless to justices. A near textbook example of that is the impact of rapidly shifting public opinion on gay marriage had on the court. In the short space of little more than a decade, gay marriage went from stirring outright hostility at the high court to approval. This can be chalked directly up to changing public attitudes and increased public acceptance of it.
Kavanaugh’s court decisions may well reflect the demands, pressures, changing public opinion, and the media’s watch on him. This will almost certainly be the case when it comes to a case that even remotely touches on any issue involving women. On this he’ll always be the prime target of court watchers.
Kavanaugh may not be the Kavanaugh that the right smugly assumes he’ll be. Or, for that matter he may want to be.
Earl Ofari Hutchinson is an author and political analyst. He is the author of WhyBlack Lives Do Matter (Middle Passage Press). He is a weekly co-host of the Al Sharpton Show on Radio One. He is the host of the weekly Hutchinson Report on KPFK 90.7 FM Los Angeles and the Pacifica Network.