By Earl Ofari Hutchinson
Now that Senate Majority Leader Mitch McConnell has gotten his way and Judge Brett Kavanaugh has been confirmed by the Senate and seated on the U.S. Supreme Court, what kind of justice will he be?
That question is almost as hotly debated as Kavanaugh’s sexual proclivities, drinking and lies.
The one thing for certain is that he’s the long-salivated over fifth vote McConnell, President Donald Trump and ultra-conservatives have wanted on the high court for years. He is 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 fifth vote to further gut labor protections, the Voting Rights Act, scuttle regulations on the 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, opinions, writings and speeches give every reason to think that will be the kind of judge he will be.
That 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 has been as good as his word.
Yet, that may not hold true for Kavanaugh. To the horror of presidents — usually Republicans — who handpicked them, some Supreme Court justices 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 have been a pack of other judges that have occasionally broken from conservative orthodoxy to vote counter to the party line and wishes.
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 those 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.
That 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 Supreme Court in decades. He will 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. That 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. That 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 “Why Black Lives Do Matter” (Middle Passage Press). He also is a weekly co-host of the Al Sharpton Show on Radio One and the host of the weekly Hutchinson Report on KPFK 90.7 FM Los Angeles and the Pacifica Network.