Thus when Judge Kavanaugh becomes Justice Kavanaugh, there finally will be a reliable fifth vote to join the other four originalists. That does not mean a “radical court,” an “activist reactionary majority” or other Democratic hyperboles. It means a court that is at least for a time both modest in its understanding of its role vis-à-vis the other branches and also willing to reclaim territory ceded by previous court majorities to administrative agencies. The new majority will not invent new rights, but it will be busy protecting old ones, such as the Fifth Amendment’s right not to have property taken without compensation. It will also be respectful of the states and their constitutionally protected sovereignty. In particular, Kavanaugh will focus intense scrutiny on the claims of the administrative state, including its propensity to move at the speed of “bureaucracy standard time.”
Conservatives can trust, from Kavanaugh’s vast record, that he will not become a liberal upon joining the court, as David Souter did. Still, while that record is of often brilliant originalism on the bench, there are also brushes with political controversy off of it, including during the Clinton impeachment proceedings when he was a member of Ken Starr’s team and during his service in the George W. Bush White House. Those jobs will turn hearings that should be devoted to Kavanaugh’s qualifications for the Supreme Court into a relitigation of the past quarter-century of American history. The “terror memos” are back on the table, as are the theories behind the articles of impeachment against Clinton — theories that Kavanaugh helped draft (though of course only as an employee of Starr).