Brett Kavanaugh may not have been the first choice of social conservatives for the Supreme Court, but a leading voice in the Christian legal community is applauding the choice and hopes Kavanaugh will help take the court out of the business of policymaking.
President Trump tapped Kavanaugh, a 12-year veteran of the U.S. Court of Appeals for the D.C. Circuit, for the Supreme Court seat held by the retiring Justice Anthony Kennedy. Many social conservatives championed Judge Amy Coney Barrett for the nomination, but Liberty Counsel Chairman Mathew Staver is thrilled with the choice.
“It is exactly the kind of judge we need on the U.S. Supreme Court,” said Staver. “His credentials are impeccable. He is exceptionally qualified to sit on the U.S. Supreme Court as a justice.
“From a judicial philosophy standpoint, I think that is really what is of interest to most social conservatives or most people that are interested in the court and the rule of law,” said Staver.
Staver says he was very impressed with Kavanaugh’s 2017 speech in which he explained why the late Chief Justice William Rehnquist was his “first judicial hero.”
“He ultimately wanted to bring the court away from social policymaking, which it’s not supposed to do or be, to a rule of law entity, which is exactly what it’s supposed to do,” said Staver.
Kavanaugh has drawn concern from some social conservatives for stating in his confirmation hearings for the appellate court that he considers Roe v. Wade to be an established precedent. Staver says it is a mistake to conflate the role of an appellate court judge with a Supreme Court justice.
“[Appellate judges] have to follow the law as it’s been established by the U.S. Supreme Court, but a Supreme Court justice can actually have the opportunity to overrule bad precedent,” said Staver.
Another concern on the right is Kavanaugh’s 2011 decision siding with the government on a technical issue related to challenge to Obamacare. Again, Staver says the concern is unfounded.
Staver says the decision in question dealt only with whether it was appropriate for the court to take up the issue at that point, and that Kavanaugh was not addressing the merits of the law.
“Had he ruled on the merits, based on his judicial philosophy, he would not say that the commerce clause authorizes the government to force people to purchase a product or service. He’s actually said that before and even after that particular decision,” said Staver.
Staver was not a fan of Donald Trump during the 2016 GOP primary season but supported him in the general election against Hillary Clinton due to the Supreme Court seat vacated upon the death of Justice Antonin Scalia. Now that Trump has nominated Neil Gorsuch, who now sits on the court, as well as Kavanaugh, Staver says his trust in Trump’s nominations was well-founded.
“President Donald Trump has kept his promise. A lot of people voted for him because of the U.S. Supreme Court,” said Staver.
Staver doesn’t want Kavanaugh to join the court and make policy favorable to conservatives. He wants the court to get out of that business altogether.
“It needs to get out of politics. It needs to get out of social policymaking and the right justices can extricate the Supreme Court from social policymaking and put it back to where it’s supposed to be , an institution that respects and follows the rule of law,” said Staver.
However, Staver expects a vicious political fight precisely because he believes liberals want the court to keep making social policy they can’t advance legislatively. He also warns that George Soros and others will likely bankroll groups posing as conservatives opposed to Kavanaugh in order to create division on the right.
“I think there’s even going to be false, so-called conservative groups that are created by the left and make it look like there’s a division within conservatives and those that believe in the rule of law,” said Staver.