What If President Trump’s Nominee Is Stroke of ‘Trumpian’ Genius?
I’m a conservative who isn’t doing backflips over Brett Kavanaugh being nominated by President Trump to replace retiring Supreme Associate Justice Anthony Kennedy. I’m not bashing my President; I’m hoping that this nominee is a stroke of selection genius.
My reason for not being excited about this nomination is because the same entities that pushed John Roberts for the Court pushed for Kavanaugh. As many will remember the first act by John Roberts as Chief Justice was to stick it in our collective ear. As Eric Scheimer wrote at the time: “Chief Justice John Roberts joined liberal Justices Ruth Bader Ginsburg, Sonia Sotomayor, Elena Kagan, and Stephen Breyer in upholding the Democrats’ health care law on a 5-4 vote … Writing for the court, Roberts concluded the individual mandate in the Affordable Care Act is constitutional because, “The Federal Government does have the power to impose a tax on those without health insurance. Section 5000A is therefore constitutional, because it can reasonably be read as a tax.” (Justice Roberts: Individual Mandate Is a Tax; ‘Not Our Role to Forbid It, or to Pass Upon Its Wisdom’; CNSNEWS.com; 6/28/2012)
Roberts’ reasoning was problematic not only because it shafted us, but Obama himself had spent an extraordinary amount of time saying the mandate was not a tax. Now, along comes Kavanaugh, and despite the fact that the “long knives” who are supporting him are insisting that we should ignore his comments on obamacare, I for one find them very troubling because his words have been used to reinforce obamacare. Add to that the fact that George W. Bush wasted no time at all in tweeting out: “President Trump has made an outstanding decision in nominating Judge Brett Kavanaugh to the Supreme Court. Brett is a brilliant jurist who has faithfully applied the Constitution and laws throughout his 12 years on the D.C. Circuit. He is a fine husband, father, and friend – and a man of the highest integrity. He will make a superb Justice of the Supreme Court.” This coming from the man whose entire family rebuked and continues to rebuke President Trump in the harshest of terms.
I have other reasons for being leery of this pick and the concern that he may turn out to be another Souter is only one of them. Another concern is that he may turn out to be another Kennedy. Justice Kennedy was a “hold your breath swing vote.”
I do not, however, expect nor do I suspect there will be any attempt to overturn Roe v. Wade; nor do I think that should be the primary focus as such. It is my opinion that he should defend against adding to “Roe.” My opinion as a Christian minister is that if the church and the leadership of same were doing their job in preaching the scriptures as intended without finding what amounts to mythical “penumbras of emanation” juxtaposed to understanding that God’s “word is settled in heaven.” (See: Psalms 119:89) It is immutable. Abortion is utilized not because of what the SCOTUS did in 1973, but because of what man has done in being disobedient to God. I submit that if we as ministers performed according to our calling having “Roe” wouldn’t matter because men and women would follow God’s law.
However, following is what I would like to think is in play. President Trump is a genius at playing chess while others are playing checkers with Barney Fife in the Mayberry courthouse.
Most of the time I would disagree with Erick Erickson on what color a blue sky is, but in this instance something he wrote that a friend forwarded me caught my attention.
Stick with me. Suppose Kavanaugh turns out to be close to a Kennedy. That means obamacare will not be overturned, but as President Trump said doing his campaign and first weeks in office, obamacare will ultimately die on its own. As long as “Roe” isn’t added to or fortified from the “Bench” I’m okay because as I have said ad nauseum, I believe it is the job of the Christian church to preach Christ-like behavior and preach against sin that leads to the violation of one’s body by having human life ripped from it and murdered. I also believe that Constitutionally “Roe” is a State’s rights issue.
With that said, what is left? Enter an interesting article by Erick Erickson and the potentially genius move by President Trump. Ask yourself what part of the Constitution is under threat the most at this very moment and for the foreseeable future? It is the Second Amendment. Suppose President Trump views Kavanaugh as a mostly safe swing vote Justice. Suppose he feels that chances are Kavanaugh will swing right perhaps 75 percent of the time. That amounts to slightly better than an even wash with Kennedy in my reasoning.
However, suppose in addition to that Kavanaugh is a bulwark on the Second Amendment. That means in theory that our rights under the Second Amendment would be safe for the foreseeable future, all things being equal. The next seat most likely to open on the Court is that of Ginsburg and from the looks of it, she will go out on a gurney with a toe-tag. Ergo, the hypercritical nomination for President Trump is the next one. It is the next nomination that can shape the SCOTUS for decades and generations to come. The Kavanaugh selection is important but as my good friend said to me the evening of Kavanaugh’s nomination: “Trump has made a perfect chess move. This guy will certainly be confirmed and be on our side when it counts. Republicans pick up a few more seats and it is off to the races…I trust Trump’s ability to get to the winning final move…In any event we are far better off than had HRC won. We are in God’s hands.” This is why it is critical that we pick up more dependable seats in the Senate.
Following is what Erick Erickson wrote: Democrats in red states are being forced to choose between a pro-second amendment judge and angry leftists.
There is a large contingent of conservatives muttering overnight about Kavanaugh and Roe. A good number don’t think he’ll be much better than Kennedy on that issue and are only prevented from going off the ledge by Democrat screams about Kavanaugh and Roe. Some are already privately bitching that Kavanaugh’s nomination sets back the pro-life cause, but they still recognize he’ll be better than Kennedy on many issues. The wailing of the left is providing comfort for those on the right who are not reassured Kavanaugh is right enough.
But the relevant issue here is guns matter, and President Trump knows it. Kavanaugh authored an opinion in the second review of the Heller case at the appellate level, and both Clarence Thomas and Antonin Scalia embraced his reasoning.
Kavanaugh is an intellectual standard-bearer for the right to keep and bear arms.
There are now more handguns owned in the United States by private citizens than there are private citizens. The armory of the American people is larger than the armory of the American military. For the past year, a growing number of Democrats have become ever more vocal about curtailing gun rights. The Democrats have become more and more public about gun confiscation. A former Supreme Court Justice has called for the repeal of the Second Amendment. The California Supreme Court has declared that gun laws that are physically, literally impossible to comply with are still constitutional.
And Bill Nelson, Jon Tester, Heidi Heitkamp, Joe Donnelly, and Claire McCaskill are going to be asked to vote on whether Kavanaugh should or should not be on the United States Supreme Court.
Voting against Kavanaugh will be akin to voting for a rollback of the second amendment, and they’ll have hell to pay from pro-gun voters in their states who are increasingly voting on guns as a single issue in response to the left’s radicalism.
If they don’t oppose him, they’ll have hell to pay from the left.
Good luck with that, Democrats. (See: On Kavanaugh: Guns Matter; 7/10/2018; https://www.themaven.net/theresurgent/erick-erickson/on-kavanaugh-guns-matter-HYzmMd0hqUGk4DNCw2Pp-g/?mc_cid=adade7884f&mc_eid=2a519a5a03)
Which brings me back to why it is the next pick President Trump makes that will be the most crucial for decades. On the next pick there can be no soft-centers. We need a bulldog like the late Justice Scalia, Justice Thomas or Justice Alito. Because after that, speaking in theory mind you, even if a liberal or progressive president makes an appointment to the “Bench,” the count will still be 6 to 3 favoring Constructionism and/or Originalism, with 5 to 4 favoring same depending on how Kavanaugh votes on certain issues.
I don’t know about you but I feel better now.
About the Author
Mychal S. Massie is an ordained minister who spent 13 years in full-time Christian Ministry. Today he serves as founder and Chairman of the Racial Policy Center (RPC), a think tank he officially founded in September 2015. RPC advocates for a colorblind society. He was founder and president of the non-profit “In His Name Ministries.” He is the former National Chairman of a conservative Capitol Hill think tank; and a former member of the think tank National Center for Public Policy Research. Read entire bio here