If it's Kavanaugh... Update: Barrett out?

All signs point to the “establishment choice” as I write this at 6:15 ET, which isn’t a surprise. As Ramesh Ponnuru noted within the past hour, all of the SCOTUS tea leaves over the past two weeks have featured him and him alone consistently among the top two. Initially it was Kavanaugh and Barrett, then Kavanaugh and Kethledge for a few days, then finally Kavanaugh and Hardiman. Go figure that POTUS would have come back in the end to the one constant in his deliberations.

Some righties will grumble about the pick, partly because of Kavanaugh’s Bush pedigree and partly because Barrett was the grassroots favorite for reasons that still aren’t entirely clear to me. The Bush criticism strikes me as particularly stupid. Bushes 41 and 43 controlled the party for the better part of 20 years; if you were an ambitious conservative legal up-and-comer, naturally you’d make nice with them and go to work for them. Not only were they the only conservative game in town, they were the only Republican game in town. Who was Kavanaugh supposed to align with circa 2003, when Trump was still more than a decade away from politics? Pat Buchanan?

He’s been a conservative judicial star at the appellate level for more than 10 years. If you prefer Barrett to him because he has an opinion or two to his record that you dislike, that’s not because Barrett is some unusual savant of conservative jurisprudence. It’s because she has no record. She’s been a judge for less than a year. Eighty percent of the fascination with her, I’m convinced, is due to the fact that she’s a blank slate: You can simply assume she’d take the perfect conservative position in any case because she … hasn’t been asked to take any positions yet. As for Kavanaugh’s credentials, let me quote Sean Trende of RCP:

Since Scalia’s death, though, conservatives have been without an intellectual leader. Kennedy certainly would not fill that role. The chief justice might have, had he been named an associate justice as was originally planned, but he is nevertheless chief justice. Gorsuch and Thomas are likely too idiosyncratic; they are more in the vein of William Douglas than William Brennan (these are admittedly fine hairs to split, but I think they are illustrative if taken for what the approximations that they are).

Judge Kavanaugh, however, could fill this role. His conservative credentials are nearly impeccable, and those concerned about his dissent in the Obamacare cases should remember Scalia joining Brennan’s opinion striking down flag-burning statutes. Additionally, he is, quite simply, one of the most brilliant individuals I have ever encountered. He is also a truly gifted writer. At Kirkland, we were instructed to make our briefs “sing”; his first drafts were legendary for already being full operas, and that was before he turned to the task of rewriting them dozens of times. Kavanaugh would arrive to the court well-respected by the other justices, as most of them have hired his clerks (which is unusual in this day and age). I suspect that in two decades, constitutional law nerds would speak of the Kagan-Kavanaugh clashes with the same reverence my generation holds for the Brennan-Scalia battles.

It is indeed possible that Kavanaugh will end up filling the Scalia role as the conservative bloc’s intellectual leader. I think he’ll strive for that too, having been touted as one of the right’s great legal hopes for so many years. He’ll make a mark. The worst-case scenario for him, realistically, is that he ends up aligned with John Roberts — who, I’m sorry to remind the haters, has been a reliable vote for GOPers except for, errrrrr, that one case six years ago. Kavanaugh is most definitely more reliably conservative than Kennedy, which means the Court is headed to the right. And listen: It’s entirely possible that he’ll be more reliably conservative than Justice Barrett would have. I can’t stress enough how much of a jurisprudential unknown quantity she is. Apart from her religious devotion (don’t forget that Kavanaugh’s a practicing Catholic too), I don’t understand why anyone would feel certain that she’s more of a lock to overturn Roe than Kavanaugh is.

HA readers know that I’m not prone to defending Trump reflexively but I’ll do it when he deserves it and he does deserve it if Kavanaugh is the choice. It’s either a very good pick or a stellar, game-changing one. It’ll take time to discover which it is, but there’s zero Souter potential here. He’s the surest thing ideologically — by far, I think — of any of the four finalists. In that sense, he was the conservative choice in all senses of the word. One note of caution, though:

That’s true. There’s a lot for Democrats to dislike about Kavanaugh — his Ken Starr work, his Bush work, his defense of strong executive authority, his various opinions from the bench. They’ll scuff him up in the confirmation hearing, such that someone like Manchin or Donnelly can claim later that there were just so many question marks about him to justify a no vote. With Barrett, it would have been a straightforward “Too Catholic?” inquiry, which is a bad look for Democrats and would have been hard to justify. I think Kavanaugh gets through, notwithstanding Rand Paul’s unhappiness with his Bush service, but it’s highly likely to go 50/49. Even more so than with Barrett, probably.

Update: If true, the great social conservative hope will have to wait.

Update: Yep, says Hatch, who was cheering for Barrett:


Update: Annnnd another clue pointing to Kavanaugh. He worked for Starr, of course:

Update: A Twitter pal makes a shrewd point, albeit profanely:

Quite possible. If you’ve got Luther Strange in the Senate instead of Doug Jones (and a replacement for McCain, of course), you’ve got 52 votes for the nominee. Collins and Murkowski could both walk away and confirmation is still assured thanks to Pence’s tiebreaker. Losing Alabama ended up changing Trump’s SCOTUS calculations on confirmability, in all likelihood.