Brett Kavanaugh being sworn in as a Justice of the US Supreme Court by Chief Justice John Roberts
After soul-dividing hearings in the US Senate, Brett Kavanaugh was finally, on October 6, admitted as an associate justice on the US Supreme Court. He thus becomes the 114th person to sit on this famous judicial body. The Democratic Party, the Party whose one uniting principle is protecting the legality of abortion, did everything legal and sometimes, it seemed, illegal to prevent this outcome.
For the past several weeks, the country has heard little else but the qualifications or lack thereof that Kavanaugh possessed. A vacancy on the Court was made possible by the recent retirement of Justice Anthony Kennedy, a man who held the swing vote in any crucial constitutional issue brought before the Court. Kennedy, a Catholic, as is Kavanaugh, in many ways was the most liberal of all Supreme Court justices. Kennedy’s position in the famous Casey decision held that we each choose the world we live in. When the logic of this principle was spelled out, it became clear that Kennedy held for no objective order.
The controversy over Kavanaugh had little to do with his legal qualifications. No one seriously challenged these. In the days before the final vote in the Senate, Kavanaugh had been accused of sexual improprieties while he was, some 35 years ago, still in a Jesuit high school in Maryland. The accuser, Christine Blasey Ford, was, apart from her own feelings about the issue, unable to show that Kavanaugh had anything to do with this accusation, itself inconsistent with the character of Kavanaugh’s whole life. However, it soon became clear that Kavanaugh was being opposed because of the fear that he might vote to restrict or eliminate abortion as a public policy if a case ever came up.
Most of the liberal laws in this country that touch negatively on life or marital issues were enacted not through Congress but through Court interpretations. The Left thus was right to be nervous about Kavanaugh. But Kavanaugh has viewed a justice’s task as interpreting cases in the light of the law, the Constitution, and accepted precedent. Even though he was often asked what he would do if such-and-such a hypothetical case came before the Court, he rightly answered that it is not the task of justices to decide cases in the abstract.
The Senate committee hearings were interesting for a number of reasons. They again showed that, for many, the basic principle of law that a man is innocent until proved guilty is no longer accepted by the Left. A man is now guilty until proven innocent. The whole legal tradition rather sought to establish facts based on evidence that could be corroborated. Simply charging someone or remembering something was not itself evidence enough to convict a person. The positive good that has hopefully been realized by this process is that accusations that cannot be proved are very unjust to the accused and serve to undermine human relations in the public order.
The next event of major importance will be the November congressional elections. Here all the members of the House of Representatives need to be approved by voters and a third of the Senate. Usually, election watchers expect the party in power, in this case the Republicans, to lose some seats. Whether this trend will happen this time remains to be seen. The President has campaigned for an increase of Republicans in both the Senate and the House. What effect the hearings and the approval of Kavanaugh have will probably be registered here at the polls. Much of the country has been alerted to what can happen when rules of evidence and traditional norms of jurisprudence are not followed.
President Trump is energetic and decisive. The economy has been very good. His foreign policy has been spent in restoring fairness to treaties and policies that have seen American industry relocated overseas. He has dealt with North Korea and Iran in ways no one could have anticipated. He has moved the American Embassy to Jerusalem. He has taken steps to increase funding for the military and to cut taxes. His appointments to the judiciary have been excellent.
For all of this, Trump has endured almost universal opposition from the universities, media, and the anti-life movements. Yet he seems to dominate the public life of the country. He has been under-rated which, in a way, has been to his advantage. He is both the most loved and most hated of politicians. And he has certainly made America known again.
The fact is that, with the Kavanaugh appointment, America can turn back from the ideological Left in which it has too long been immersed. The Left in American politics seems to understand this turn in public life. The reason for the consternation is that the arguments underpinning this ideology no longer make sense. All that remains for it is an all-out effort to prevent a fair judgment. That it did not succeed and need not succeed are the primary lessons that the Kavanaugh appointment bequeaths to us.
Rev. James V. Schall SJ taught political science at Georgetown University for many years. He is the author of numerous books. This year he has published The Universe We Think In and On Islam: A Chronological Record, 2002-2018.