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Brett Kavanaugh: Defending Kavanaugh has become personal for conservatives, not ideological

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A little over a year ago, conservatives greeted the news of Justice Brett Kavanaugh’s nomination to the Supreme Court with less than unified enthusiasm — mainly centering on his willingness, or lack thereof, to cast a vote to overturn Roe v. Wade. A year later, a lot’s changed.

The concerns about Kavanaugh weren’t widespread among conservatives, but they were serious, particularly among social conservatives for whom abortion was a focus. As I wrote in July 2018:

For social conservatives, overturning Roe is their biggest priority in the next decade. That’s why even their perception of a whiff of uncertainty has inspired criticism that Trump erred. … The American Family Association, a socially conservative organization founded in 1977, immediately called on its members to rally against Kavanaugh. “AFA to Supporters: Tell Senate to Oppose SCOTUS Pick Brett Kavanaugh.”… Other social conservatives were sounding the alert about Kavanaugh days before the pick was made. Joy Pullmann, managing editor of the Federalist, wrote a piece published July 6 titled “Trump Loses My Vote If He Nominates A Justice Weak On Religious Liberty,” but the URL was less circumspect, reading, “trump-would-lose-my-vote-if-he-nominates-brett-kavanaugh-over-amy-coney-barrett.”

Kavanaugh’s nomination turned into a larger (and far more difficult, partisan, and downright ugly) fight over allegations of sexual misconduct leveled against the now-Supreme Court justice. So concerns about Kavanaugh’s fitness for the court — specifically, his willingness to vote along originalist or conservative lines — fell away as the need to defend Kavanaugh from what many on the right believed to be scurrilous and partisan attacks. Once he got on the court, however, the worries about Kavanaugh seemingly came roaring back.

But over the weekend, the New York Times published a book excerpt featuring a previously undisclosed sexual misconduct allegation against Justice Kavanaugh. And many conservatives, including those who were most vociferous with their criticisms of Justice Kavanaugh’s decisions on the Court, are rallying behind him.

Now, in a sense, there are now two Justice Kavanaughs within the conservative imagination.

There’s Justice Brett Kavanaugh, a so-called “Establishment” choice for the Court disfavored by social conservatives because he’s viewed as unwilling to overturn Roe, who is even called “Karl Rove in a robe” and a “swamp denizen” by some on the right because of his ties to Bush-era — and very unpopular — conservatism.

But then there is the idea of Brett Kavanaugh — a placeholder rather than a person, a stand-in for an idea prevalent among many conservatives that every conservative, even the most milquetoast, will ultimately be the victim of vicious liberal attacks based entirely on partisan politics. To quote Conservative Review’s Daniel Horowitz following Kavanaugh’s confirmation, “The die is cast. No matter how conciliatory Republicans are on an issue, Democrats will seek to cut their hearts out.”

That means that for today, many on the right will vigorously defend Kavanaugh. But come October, when arguments will once again be heard before the Supreme Court, they might feel differently.

Kavanaugh’s first term shows he’s a conservative, just not the kind some conservatives wanted

Justice Kavanaugh’s first day on the job as a member of the Supreme Court was on October 9, 2018. During his first term, the Court heard 69 cases and issued opinions in 68 of them — though few produced landmark results. It was, as Scott Lemieux argued for Vox earlier this year, a “tentative and transitional” term.

In that piece, Lemieux notes that during his first term, Kavanaugh was a “home run for Republicans” because he voted with Chief Justice Roberts 94 percent of the time. But it’s worth noting two important factors here.

First, during that term Kavanaugh voted with Justice Stephen Breyer, who is viewed as being on the left of the Court, more often than did with either Justice Neil Gorsuch or Justice Clarence Thomas — putting him well within the moderate wing of the Court’s conservatives.

And secondly, despite being viewed largely as a moderate conservative chosen by a Republican president, Justice John Roberts is not exactly popular among conservatives, a sentiment that dates back years but has heightened recently, particularly after he invalidated the Trump Administration’s efforts to get a citizenship question to the 2020 Census.

As USA Today’s Richard Wolf wrote in April in a piece in which he described Kavanaugh as Roberts’s “wingman”:

The conservative takeover of the Supreme Court expected after President Donald Trump’s two selections has been stalled by a budding bromance between the senior and junior justices.

Chief Justice John Roberts and the court’s newest member, Brett Kavanaugh, have voted in tandem on nearly every case that has come before them since Kavanaugh joined the court in October. They’ve been more likely to side with the court’s liberal justices than its other conservatives.

Or, as Daily Wire’s Josh Hammer put it, Roberts and Kavanaugh are a “disaster for conservatives.”

Brett Kavanaugh is a stand-in for conservatism — and conservatives

But the idea of Brett Kavanaugh is not a disaster for conservatives, because the idea of Brett Kavanaugh has markedly little to do with his ruling on whether or not the First Amendment applies to public-access television, or even how he’d rule on Roe (because contra National Review’s Kyle Smith, some conservatives don’t think he’d overturn the 1973 decision.)

Rather, the idea of Brett Kavanaugh is that he is a stand-in for conservative men, a blank slate upon which fears of liberal overreach ruining the lives and reputations of right-leaning heterosexual men can be projected. He’s not Brett Kavanaugh — he’s your son, or your brother, or even you.

As the Federalist’s Sean Davis wrote last September:

If Kavanaugh is not safe from reputation- and career-destroying smears, no one is. Not you. Not your husband. Not your son, father, or brother. If they can destroy Kavanaugh, they can do it to anyone you love and trust, regardless of any mountains of facts or evidence to the contrary.

Or as the American Conservative’s Rod Dreher put it, “Conservatives look at Kavanaugh and see an ordinary, bland Republican man who is not getting a fair shake, who is being vilified primarily for being a conservative male who is believed to be against abortion.” As Dreher goes on to say, it’s not entirely clear whether or not he actually is opposed to abortion, but he seems like he is. (And most likely, for good reason: Kavanaugh was on the list of potential judges provided to Trump by the Federalist Society, which has ties to groups opposed to legal abortion). For many on the right, particularly those increasingly concerned about the potential weaponization of accusations of sexual assault against conservatives, that’s enough.

Justice Brett Kavanaugh’s juris prudence isn’t altogether popular with conservatives, particularly social conservatives. But the idea of Brett Kavanaugh — an “ordinary, bland Republican man,” who in the eyes of many conservatives has been wrongfully accused of misconduct for political purposes — is very much worth defending.





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