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Brett Kavanaugh: A Win for Immigration Hawks, A Dilemma for Civil Libertarians

After over a week’s worth of television-ready drama befitting a reality show that culminated with the White House releasing a literal teaser trailer [1], Donald Trump took to the podium in the East Room on Monday and soberly announced the nomination of Brett Kavanaugh to the Supreme Court. Eschewing his customary blood red tie (favoring instead a more understated periwinkle), Trump, almost anticlimactically, declared [2]: “There is no one in America more qualified for this position.”

The president, after much purported hemming and hawing, thus settled on the judicial candidate who perhaps best threads the political needle: impressive, confirmable, acceptable to his Breitbart base, deeply respected by the conservative political establishment in Washington, and popular enough among the American right’s remaining libertarians.

National Review [3] and the Cato Institute [4] both roundly praised the nomination.

A source close to Trump world and familiar with the process told me confidently on Sunday that the decision had been made for Kavanaugh and the president was merely drawing out the process to preserve suspense. If so, that effort at theater included the White House declining to deny serious reports on Monday that Thomas Hardiman, not Kavanaugh, was about to get the nod.

In the end, though, Trump selected the candidate favored by his White House counsel, Don McGahn, as well as, a source tells me, the immigration hardliner Stephen Miller. Trump’s relationship with McGahn has been forged in the fire of the Mueller investigation; his win on Kavanaugh suggests he trusts McGahn deeply. It also shows that Miller, who has worked for Trump since early 2016, isn’t going anywhere.

Trump passed on Hardiman, who, although backed by conservatives like Rick Santorum, had decidedly the most moderate judicial record of any of the major candidates. His selection, though potentially helpful in Hardiman’s important home state of Pennsylvania, would have underwhelmed Trump’s base nationally.

Even more cataclysmic for the president politically would have been the selection of Raymond Kethledge. Indeed, after briefly bobbing up as the favorite last week, the mild-mannered Michigan judge saw his chances savaged over the weekend by an awesome, seemingly coordinated attack from Breitbart, conservative commentator Ann Coulter, and other immigration hawks. Breitbart dubbed him “#AmnestyRay,” and speculation mounted that Coulter, one of the few Twitter accounts that @RealDonaldTrump follows, had actually direct messaged the president on Kavanaugh’s behalf and against Kethledge. Fair or not, Trump would have risked a redux of the Harriet Miers fiasco President Bush suffered had he selected Kethledge.

It’s clear: immigration hawks scored a broad victory on Monday—they got their choice candidate.

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Stephen K. Bannon, the former White House chief strategist, told me earlier that Kavanaugh was his favorite candidate; Kavanaugh’s selection is the latest development in the ongoing rapprochement between him and the president. As I reported last week in TAC [2], a memo circulating around conservative activists and lawyers, reaching as far as the White House, called Kavanaugh the “America First” choice and argued: “The evidence demonstrates quite strongly that on the question of immigration, Judge Brett Kavanaugh is the candidate who will best reflect the proper understanding of the law as well as the priorities of the Trump Administration.” 

Trump, of course, since descending the escalator in his eponymous tower three years ago, has staked his political fortunes on that issue more than any other. He will now ride or die with it again, circling the wagons with Kavanaugh, despite the nominee’s not inconsiderable drawbacks.

Though potentially poisonous with his base, Hardiman or Kethledge would have been more assured nomination fights with many swing senators; Majority Leader Mitch McConnell told the White House as much, but to no avail. Kavanaugh has over a decade’s worth of opinions on the nation’s unofficially second-highest court (the D.C. Circuit) and tenures in the Bush White House and with the special counsel Ken Starr. In Supreme Court fights, qualifications can also be Achilles’ heels.

Kavanaugh’s nomination for his last job was moderately contentious—he secured less than 60 votes in 2006. Footage, widely available online, of Charles Schumer, flanked by his then-counsel Preet Bharara (later the most prominent U.S. attorney in the country and now a “#Resistance” leader), grilling Kavanaugh on the Clinton impeachment and Roe v. Wade is a fascinating watch. This time around, Schumer is minority leader and Kavanaugh stands poised to tilt the Supreme Court to the right for a generation.

The swing senators are Republicans Susan Collins of Maine, Lisa Murkowski of Alaska, and Rand Paul of Kentucky, as well as red state Democrats Joe Manchin of West Virginia, Claire McCaskill of Missouri, Jon Tester of Montana, and Joe Donnelly of Indiana. Keep an eye on Republican John Kennedy of Louisiana, as well; he’s a real independent. In an interview with Kate Bolduan of CNN, he recently indicated he was no automatic yes for the White House.

Problematic for Kavanaugh, especially with Paul, are his views on government surveillance.

In 2015, the D.C. Circuit declined to rehear a case, Klayman v. Obama, where advocates raised the issue of warrantless, bulk metadata collection by the National Security Agency, which they said constituted a violation of basic Fourth Amendment protections. 

Kavanaugh went out of his way [5] to defend the judgment, releasing a concurring statement with the decision. While conceding that the Supreme Court held final sway “in our system of absolute vertical stare decisis,” Kavanaugh rather preposterously suggested the judiciary had no role to play in this matter of core constitutional concern. “To be sure, sincere and passionate concerns have been raised about the Government’s program,” he wrote. “Those policy arguments may be addressed by Congress and the Executive. Those institutions possess authority to scale back or put more checks on this program.” The executive should monitor the executive, in other words.

Kavanaugh reasoned:

Even if the bulk collection of telephony metadata constitutes a search… the Fourth Amendment does not bar all searches and seizures. It bars only unreasonable searches and seizures. …The Fourth Amendment allows governmental searches and seizures without individualized suspicion when the Government demonstrates a sufficient “special need”—that is, a need beyond the normal need for law enforcement—that outweighs the intrusion on individual liberty.

Amy Coney Barrett lacked Kavanaugh’s surveillance record, as well as his associations with the Bush White House. But that’s only because she lacks much of a record at all. And on the heels of a mediocre interview with the president, a source familiar with the matter told me that Barrett’s nomination was shelved for a potential later date.

And as reported Tuesday morning by Axios [6], Trump isn’t worried about the whip count on Kavanaugh, telling detractors privately: “He’s got the votes.”

He likely does.

Curt Mills is the foreign affairs reporter at The National Interest, where he covers the State Department, National Security Council, and the Trump presidency. 

16 Comments (Open | Close)

16 Comments To "Brett Kavanaugh: A Win for Immigration Hawks, A Dilemma for Civil Libertarians"

#1 Comment By Don Walker On July 10, 2018 @ 10:57 am

How can “immigration hawks” consider Kavanaugh’s nomination a “win” when he is “roundly praised” by the folks at the Cato Institute, which is at least pro-immigration if not supportive of open borders?

Is “immigration hardliner” Stephen Miller not aware of libertarian support for the “free flow of labor?” Is Stephen K. Bannon equally as clueless as Miller?

#2 Comment By Sam M On July 10, 2018 @ 12:02 pm

Don Walker,

Seems pretty simple. Read the Cato post that’s linked. The writer admits that they do NOT see eye to eye with him on everything. So… what are their options? Not support the guy? Don’t support him, and he’s not confirmed, and you are stuck trying to nominate and confirm a candidate after the midterms, quite possibly without a majority. I am guessing Cato doesn’t think that by waiting, they get a more preferred candidate like, I don’t know, Randy Barnett. So they decide not to make the perfect the enemy of the good. That’s how politics works. Or at least it should. Kavanaugh, on balance, takes the court further toward an originalist, strict constructionist position. That’s a win for Cato. If Trump had picked an open borders guy, I am sure that guy would be bad for Cato on some other front.

#3 Comment By Jeff On July 10, 2018 @ 12:25 pm

@Don Walker – I have not read much of Kavanaugh’s jurisprudence yet (I plan to read this article of his later: [7]), but I imagine what Miller believes is that Kavanaugh believes immigration regulations are under the purview of the executive branch. The sense I am getting from the commentariat is that he is broadly deferential to the executive, as is outlined in this article.

#4 Comment By connecticut farmer On July 10, 2018 @ 12:49 pm

“The Fourth Amendment allows governmental searches and seizures without individualized suspicion when the Government demonstrates a sufficient ‘special need’—that is, a need beyond the normal need for law enforcement—that outweighs the intrusion on individual liberty.”

A lot of sweeping generalizations here. What, pray tell, is a “normal need.” You can drive a fleet of tandem Peterbilts through this one! Rand rightly ought to be concerned about statements such as these from an erstwhile “conservative.” Hate to say it, but when the day is done we may have to settle for a half a loaf.

#5 Comment By Kurt Gayle On July 10, 2018 @ 2:03 pm

Re Kavanaugh and the Cato Institute I think that “Sam M” calls it right. Immediately following President Trump’s announcement that Brett Kavanaugh would be his nominee for Supreme Court Justice, Ilya Shapiro posted this statement for the Cato Institute (the statement that Sam M wanted to link to):

“Judge Brett Kavanaugh: A Strong Supreme Court Pick. Brett Kavanaugh is a strong pick for the Supreme Court. In his 12 years on the D.C. Circuit, Judge Kavanaugh has demonstrated a devotion to legal text and constitutional principle. I admire his dedication to the Constitution’s structural protections for liberty, his steadfast defense of the rights of speech and religious conscience, and most notably his willingness to question the excesses of the regulatory state. He has repeatedly affirmed that judges serve not as the champions of faction, but as the readers of laws and adjudicators of disputes. While there will no doubt be cases where the future Justice Kavanaugh and Cato do not see eye-to-eye, I hope that he will not flinch in those super-hard cases where Chief Justice Roberts may be inclined to bend over backwards to uphold a law or split the baby by rewriting it. I wish him a speedy confirmation; there is literally nothing in his record that justifies the smears and demagoguery he’s about to face.”

#6 Comment By Kurt Gayle On July 10, 2018 @ 2:26 pm

@ connecticut farmer: You raise important issues. This morning (July 10th) the Cato Institute posted an interview with their adjunct legal scholar Andrew Grossman that (from 6:32 – 10:05) not only deals with Kavanaugh’s view of national security cases, but also deals with his view of his own restricted role as a U.S. Circuit Judge of the United States Court of Appeals for the District of Columbia Circuit. This interview segment gives some context to Kavanaugh’s legal position in the case that you and Curt Mills cite:

[8]

#7 Comment By balconesfault On July 10, 2018 @ 2:27 pm

Of course we’re getting a Justice who is going to give wide latitude to the government in search and seizure … who also believes that a sitting POTUS shouldn’t be subject to any form of prosecution.

Consolidation of power. It’s almost certain that power will someday be turned against the interests of many of those cheering Kavanaugh’s nomination today, but I’m sure they’ll find a way to blame the Dems when that happens.

#8 Comment By EliteCommInc. On July 10, 2018 @ 2:43 pm

i will gave to wait and see. supreme court justices are forever full of surprises.

that conservatives are having to engage in the most elite selections for a favorable polity is not a healthy sign for the future.

perhaps, not even the present.

#9 Comment By Don Walker On July 10, 2018 @ 2:46 pm

Sam M & Jeff:

I am an immigration “hawk” and “hardliner” and I shudder at the thought of someone “roundly praised” by the open borders crowd at the Cato Institute serving on the Supreme Court. They must believe that Kavanaugh will side with them on the immigration issue.

#10 Comment By EngineerScotty On July 10, 2018 @ 2:52 pm

Far too many at Cato care more about the liberties of capital to throw their weight around and engage in economic coercion (“freedom of contract”) unfettered by the state reigning in such things, then they do about things like civil liberties.

Using civil libertarian rhetoric to mask a profoundly reactionary agenda (and one that the populist right might not like) is an old tactic on the right.

Unfortunately, this seems to be the case for Sen. Paul. While he often talks a good game, sometimes for hours in the belly of the Senate, the next time he does something meaningful to oppose Trump will probably be the first. He’ll hem and haw, but I’m sure Kavanaugh will get his vote–especially if it is a necessary vote for confirmation.

#11 Comment By EngineerScotty On July 10, 2018 @ 2:54 pm

Consolidation of power. It’s almost certain that power will someday be turned against the interests of many of those cheering Kavanaugh’s nomination today, but I’m sure they’ll find a way to blame the Dems when that happens.

It seems that a whole lot of people on the right are betting that it won’t–that by the time November rolls around, the current Democratic polling advantage (and popular outrage against Trump) will no longer matter.

#12 Comment By Whine Merchant On July 10, 2018 @ 6:31 pm

“Consolidation of power. It’s almost certain that power will someday be turned against the interests of many of those cheering Kavanaugh’s nomination today, but I’m sure they’ll find a way to blame the Dems when that happens.”

A good prediction of traditional GOP pseudo-logic: ‘Trust us with all the power, we represent big business and Israel. Just don’t let the peasants cross the moat, they will abuse the power.’

#13 Comment By cka2nd On July 10, 2018 @ 6:48 pm

There is an interesting report from The Intercept making its way around the left side of the web that Chuck Schumer has told his Democratic colleagues that (a) “there will be hell to pay from the Democratic base” if Kavanaugh’s nomination is not opposed full bore, and (b) the kind of whiny, process-based opposition the Dems (under Schumer’s leadership) put up to oppose Gorsuch (“Mitch McConnell stole the seat from Merrick Garland and President Obama!”) will not cut it this time. If the Dems actually follow their leader’s advice, expect Kavanaugh’s very extensive paper trail to be put through the wringer. Whether the Dems, or Repubs like Paul and Lee, will put some focus on issues that MIGHT resonate ACROSS their bases – corporate power, civil liberties, executive privilege – is another question. If the Dems spend hours or days chewing on Kavanaugh over his work for Ken Starr, expect much heat but little light. Worse for them, that won’t play with the Democratic base, either.

#14 Comment By TheSnark On July 10, 2018 @ 7:35 pm

The writer and most of the comments sound just like the Democrats: if you can’t get something through the legislative process, try to get it through the judiciary. The only difference is which party’s agenda they want the judiciary to enact.

What ever happened to doing what the Constitution says, and enacting your agenda through the legislative process rather than trying to sneak it through the courts? Oh, right, that requires hard work, persuasion, and (dare we say it?)compromise. Seems like neither the Democrats or Republicans can be bothered with any of that.

#15 Comment By dbrize On July 10, 2018 @ 7:42 pm

Those who favor (or are willing to abide) FISA courts, the Patriot Act and the continuing consolidation of executive power will rejoice in this nominee. As will the MIC and global bankers.

The Dems will oppose him albeit for the wrong reasons. Which is why they will be unsuccessful and know it. The fund raising opportunity will assuage their crocodile tears leading into the mid terms. They may even allow a blue dog or three to jump ship in order to keep them safe.

#16 Comment By Imissbuckley On July 11, 2018 @ 6:47 pm

“A Dilemma for Civil Libertarians”

Yeah…all three of them.

Paul, Lee, and Wyden are probably the only ones who will actually question him on civil liberties and executive power. But Paul and Lee will both likely vote for him regardless of his answers, since it makes absolutely no political sense to vote against him (they may be libertarian-leaning but they’re still Republicans in Red States).
Wyden will vote against him, both for Civil Libertarian reasons and Progressive reasons (Plus he’s from Oregon). Really it’ll be one of the easiest votes he’s ever made.

I really don’t see anyone else really questioning him on civil liberties or executive power. If they did they’ll likely praise him for his reasonable and mainstream jurisprudence.