The Phyllis Schlafly Report
by John and Andy Schlafly
With his second conservative nomination to the Supreme Court, President Trump has already exceeded Ronald Reagan. Brett Kavanaugh is stellar on immigration and sovereignty, the life issue, and the Second Amendment.
Trump made this look easy, but liberals did everything they could to dissuade him from selecting Brett Kavanaugh to fill the vacancy left by Justice Kennedy on the Supreme Court. A coordinated, sophisticated campaign to criticize Kavanaugh from the right was both insincere and deceptive.
The tiny Never-Trump wing of the Republican Party does not like how Kavanaugh has long agreed with Trump on core issues. Unlike Kavanaugh’s liberal rivals for nomination to the Supreme Court, he has participated in more than 3,800 cases and unflinchingly defended principles loathed by liberals.
How refreshing it is to actually have a Supreme Court nominee who supports American sovereignty, and does not defer to international law! Writing alone as he has often had to do on the liberal D.C. Circuit, Judge Kavanaugh has explained that the War Powers Clause is not restricted by international law.
That was in a 2016 decision which considered a challenge to a military commission by Ali Hamza Ahmad Suliman Al Bahlul, who was convicted as the personal assistant to Osama bin Laden. Judge Kavanaugh stood strong against the lawsuit, as the entire Court of Appeals should have.
In another case that began in 2007, Judge Kavanaugh dissented from a decision that gave illegal aliens the same rights as American workers in forming unions for collective bargaining. Kavanaugh explained in dissent that “an illegal immigrant worker is not an ’employee’ under the NLRA for the simple reason that, ever since 1986, an illegal immigrant worker is not a lawful ’employee’ in the United States.”
On the Second Amendment, Judge Kavanaugh was on the panel that heard a challenge to DC's strict gun controls after the Supreme Court established an individual right under the Second Amendment to keep and bear arms. The majority of that panel then upheld the gun control as courts do across the country now.
Judge Kavanaugh strongly dissented from that pro-gun-control decision, and wrote in favor of a Second Amendment that should be defended as strongly by courts as the First Amendment is. Justice Clarence Thomas will have a strong ally on the Supreme Court for the Second Amendment once Kavanaugh is confirmed.
None of the other eight justices on the Supreme Court, including Neil Gorsuch, would join Justice Thomas’s dissent in February decrying how gun control laws are being upheld by Courts of Appeals and the Supreme Court is refusing to accept those cases to review and reverse. The stark reality is that the Supreme Court has not taken a real Second Amendment case in years, and lower courts have gotten the message that they can uphold gun control laws without fear of being reversed.
Trump’s brilliant nomination of Kavanaugh to the High Court changes that. We can expect Kavanaugh to call out his colleagues if they continue to duck Second Amendment appeals, and his strong legal reasoning should help protect that fundamental right against further erosion.
On the life issue, liberals are of course sharpening their knives to try to block Kavanaugh from confirmation by insisting that he might overturn Roe v. Wade. But that is a very tough sell by the Left, as young people are increasingly pro-life and nearly a half-dozen Democratic Senators are running for reelection in pro-life states that Trump carried by a landslide.
The issue of Roe v. Wade has never sunk a nominee in the Senate, despite all the hoopla by pro-abortion feminists pretending that they can block a nominee on that issue. They failed in trying to block Justice Clarence Thomas on that issue, and were unable to block the confirmation of John Roberts or Samuel Alito, either.
We hope that Kavanaugh does not grovel to pro-abortion senators as they demand reassurances that the fallacy of Roe v. Wade be enshrined forever even though it has absolutely no basis in the Constitution. Kavanaugh need not answer questions about the issue, just as Justice Ruth Bader Ginsburg set the precedent herself for declining to answer specific questions about cases.
The isolated criticisms of Kavanaugh by the Never-Trump crowd have been unjustified. His ruling to uphold a narrow part of a campaign finance law relating to political parties is not a core issue to the conservative movement, and certainly not a basis for opposing his nomination.
Justice Anthony Kennedy turned to the right in his final year on the bench, both in his decisions and in allowing Trump to fill his vacancy. It is unlikely that Justice Kennedy would find anything to criticize in this nomination of Kavanaugh for the seat that Kennedy is leaving, and neither should any Republican or moderate Democrat.
John and Andy Schlafly are sons of Phyllis Schlafly (1924-2016) and lead the continuing Phyllis Schlafly Eagles organizations with writing and policy work. These columns are also posted on pseagles.com.