Needless to say, the left is going to throw everything they have at Judge Brett Kavanaugh, but the incoherence and contradictions of the left during the first news cycle suggests it is going to be a rout, and that the left will only succeed in embarrassing themselves.
From the reaction of the left, you’d think that the Supreme Court gets up every morning and simply decides what laws it wants to change. It’s as though five justices can meet over breakfast and decide, “Hey—why don’t we strike down Roe v. Wade today? Sounds neat!” That’s not how it works, of course. The Supreme Court can only decide a question that is presented in a case brought to it. And that takes a while, even in the clearest controversies.
I suppose we can forgive the left for thinking the Supreme Court has this plenipotentiary power. After all, most leftists don’t understand the separation of powers, or if they do, they’re against it, and see the judiciary as a primary engine of “progress.” The left has been arguing since Woodrow Wilson for the Supreme Court to have more power to govern the country. As Wilson wrote in Congressional Government (1890), progress can be accomplished “only by wresting the Constitution to strange and as yet unimagined uses.” And who will do all this “wresting”?
He explained this more explicitly in Constitutional Government (1908): “The explicitly granted powers of the Constitution are what they always were; but the powers drawn from it by implication have grown and multiplied beyond all expectation, and each generation of statesmen looks to the Supreme Court to supply the interpretation which will serve the needs of the day. . . As the life of the nation changes so must the interpretation of the document which contains it change, by a nice adjustment, determined, not by the original intention of those who drew the paper, but by the exigences of the new aspects of life itself.” Notice that Wilson implicitly rejects the idea of that the people ought to be the sovereign authority on such questions, acting through their elected representatives either through ordinary legislation or through the prescribed process for amending the Constitution to adapt to changing times. Instead, for “progressives” it is the job of the Supreme Court to “grow and multiply” the powers of the federal government.
But this leads directly to the second incoherent position the left is staking out with respect to Kavanaugh. Again, let’s go back to Wilson for a moment. Just who did Wilson want to exercise these expanded powers? Why the president, naturally, through his much expanded administrative apparatus in the executive branch. Wilson is quite explicit about this, and the aggrandizement of the administrative state has been the partisan project of the Democratic Party every since.
So what is one of the primary complaints about Kavanaugh so far? That he’s too favorable to executive power. Of course, this leftist objection is really confined to Kavanaugh’s rulings and expressed views about executive power in connection with national security questions, where the constitutional presumption of executive power is strongest. Elsewhere, Kavanaugh is on record questioning the Chevron doctrine that is the cornerstone of bureaucratic power today, and is the power probably more important to the left than compulsory abortion.
The Chevron doctrine is ripe for taking down, and the issue came up quite a bit during the confirmation hearings for Justice Gorsuch last year. The left is going to look rather silly asking Kavanaugh, “How come you support strong executive power? And how come you want to erode strong executive power?”
Get your popcorn ready. Meanwhile, if you’ve forgotten the fine points of the Chevron doctrine, refer once again to this zippy tutorial: