Thursday, July 12, 2018

To Kavanaugh, Or Not To Kavanaugh? That Is The Question

Friends, my latest article addresses conservative criticism of Brett Kavanaugh, President Trump's latest pick for the Supreme Court.  I believe this criticism to be overblown, as I explain in my latest article, coming soon to American Greatness.  Will Kavanaugh be the firebrand reactionary zealot that you and I pine for?  That I can't guarantee, but I do believe he'll be a distinct improvement on Anthony Kennedy, and that's my personal litmus test.  Kavanaugh passes!  My hope, though, is that the Supreme Court is only starting its journey down the Golden Road of Trumpism.  Time will tell.
Brett Kavanaugh Isn't Defined By The Swamp That Spawned Him

Conservatives all across America are asking themselves: who is Brett Kavanaugh, and what kind of Supreme Court Justice will he make? The answers are myriad and mostly speculative.

Judge Andrew Napolitano, a senior judicial analyst for FoxNews, has written an article about why he is “deeply disappointed” in President Trump's decision to nominate Kavanaugh. While some of his concerns may be valid, Napolitano's main argument – that Kavanaugh is tainted by his associations with the DC swamp – makes little sense.

First, Napolitano defines the swamp as “the permanent government and its enablers in the legal, financial, diplomatic and intelligence communities in Washington.” Conveniently, therefore, Napolitano excludes the media from the swamp, although surely the Washington establishment relies first and foremost on its “enablers” in the mainstream media to keep it in power. Napolitano himself, as a FoxNews analyst, could be accused of swampiness. My first reaction to Napolitano's denigration of Kavanaugh as a swamp monster, therefore, is: “Let he who is without sin cast the first stone”.

Furthermore, we should understand that “the swamp” is ill-defined. As Napolitano admits, it seems never to include anyone we like. For conservatives, an outspoken liberal politician or a Trump-hating bureaucrat or FBI agent is a creature of the swamp, surely, but a right-minded old hand in Washington is instead a “seasoned veteran”. This just means that “the swamp” is a largely pejorative concept, and often those who employ it are engaged in plain, old-fashioned name-calling.

Now, if there is any objective, literal meaning to “the swamp”, it describes a Washington elite that is interconnected, resistant to meaningful change, and corruptly uses governmental power and federal largesse to protect and reward allies and punish and undermine perceived enemies. DC politicians vary in the degree to which they might be identified with such swampy behaviors and attitudes, but one thing is clear: both parties are equally befouled. 

We must further acknowledge that there are very few people in positions of influence in our government who are utterly divorced from the swamp, or who could be described as moral purists or true political newcomers. President Trump appointed several DC outsiders to his cabinet, yes, but even he – the swamp monster's mot-feared natural predator – had to add many “seasoned veterans” to his administration. Without them, and their experience, the Executive Branch simply could not function. Does this mean that Trump's criticism of the swamp is disingenuous? Not necessarily, because, from a practical standpoint, no swamp can be drained unless you enter it first...

The most important point is this: long-time Washington ties, and even the occasional lapse into swampy attitudes and behavior, do not and should not exclude a politician, or a judge, from recruitment into President Trump's campaign to reinvigorate America. The over-hasty denigration of political figures who are deeply embedded in the Washington establishment risks the loss of their knowledge, influence, and experience, and it neglects the obvious fact that, while they can be powerful enemies when provoked, they can also be invaluable allies when harnessed to a noble cause. Mitch McConnell, for example, may be about as swampy and sly as a Senator can get, but he has also overseen a successful strategy to prevent the judiciary from falling into liberal hands. We owe him a huge debt of thanks. I, for one, will gladly hold my nose and overlook the vile emanations of the swamp to achieve historic victories like these.

Judge Napolitano goes on in his article to suggest that Kavanaugh will be a disappointment as a Supreme Court Justice because he is infected with the “values” and the “culture” of the swamp. Kavanaugh believes, for instance, that Americans' rights to privacy should be weighed against the imperative of national security. He believes that the President should be shielded from some types of lawsuits while in office. Napolitano interprets these views to mean that Kavanaugh will support an unchecked, potentially totalitarian “deep state”. Napolitano even suggests that Kavanaugh is somehow complicit in deep state efforts to undermine Trump himself, but all of this is a gross over-reading of the few signals we presently have regarding Kavanaugh's mindset and his legal and constitutional philosophy. Simply put, Kavanaugh has never ruled on most truly momentous issues, nor has he enunciated clear views on most of them. We should suspend judgment, therefore. 

We also shouldn't assume that, because Kavanaugh sometimes associates with swamp monsters, he is captive to their “values”. Does Judge Napolitano, who teaches classes at Brooklyn Law School, accept and practice, for this reason, the radical PC “values” of academia? Of course not. It would be silly to suggest that he does. No one is defined exclusively by the company he keeps.

It might also be prudent to consider the possibility that, if Kavanaugh is in any sense a swamp monster, with a predilection for establishment “culture”, the experience of the next few weeks and months, when large parts of the swamp will be working furiously to malign and destroy him, may cure him definitively of his swamp fever. Who can say? In any case, Kavanaugh's “values”, and the degree to which they may change over the years, are largely unknowable. His decisions, on the other hand, are a matter of record, as are his partisan political leanings, and these ought to make conservatives pleased and confident.

In the end, the fact that President Trump has nominated an experienced, mildly swampy jurist with connections to the Bushes should not concern conservatives and lovers of liberty as much as Napolitano suggests. Every objective reading of Kavanaugh's record has tended to indicate that he will be a Supreme Court Justice considerably to the right of Anthony Kennedy, who he will replace. It is hard, therefore, to see his elevation to the Court as anything but a win.

Conservatives, therefore, should support Kavanaugh without misgivings. They should also keep in mind that, if they would have preferred a more forceful, fervent conservative judge like Amy Coney Barrett, she may yet get her chance. 

When it comes to Trumpifying the judiciary, Gorsuch and Kavanaugh are a good start, but arguably the best is yet to come.

Dr. Nicholas L. Waddy is an Associate Professor of History at SUNY Alfred and blogs at: He appears weekly on the Newsmaker program on WLEA 1480.

And here is the American Greatness version: 


  1. Dr. Waddy: I'm encouraged by your optimism about Judge Kavanaugh and my concern over Judge Napolitano's misgivings are mostly alleviated. You've supplied a workable and plausible definition of the "swamp"; I'd only disagree with the last sentence. I think the left, with its airy and reflexive dismissal of any opposing position together with the Marxist conviction,which motivates some "swampers",that their doctrine is unbeholden to any other and is incomprehensible using "bourgeois" standards, makes it easier for them to disobey understood injunctions against the use of government bureaucracy for partisan purposes. I believe I saw this bias in NY State government and would guess it obtains in the Federal gov't too. It would be interesting to see a survey, similar to ones done with military personnel, college professors and journalists, of the party affiliations of Federal bureaucrats.

  2. Also, sorry for the poor construction of my sentence reading "I think the left... standards etc". It should read "I think the left... standards, finds it easier to disobey... ."

  3. Oh, Jack -- I don't think there's any doubt that the federal bureaucracy is teeming with the very Marxists you speak of. Certainly it's stacked with Democrats. I inwardly rejoice every time one of these shop-worn Bolsheviks resigns in disgust over some act of Trump's! We need to clean house. And I'm sure you're right that the true believers on the Left feel that defeating the Right is far more important than "bourgeois" notions of professionalism or even-handedness. Strzok seems to have been successful in pulling the wool over some people's eyes, but it beggars belief that a man who hates Trump that much could objectively decide whether he should be investigated.

  4. Dr. Waddy: I think some younger leftists have been brought up in a culture in which Marxist values are givens and that they may not know or care or have thought about the origins of these standards. To them, pre 1917 Russia is unknown and unknowable .If they have been to "university" since the '70's, they may just think "well, that's the way it ought to be, of course"

    The advent of a national leader who is not intimidated by their political correctness is incomprehensible to them and their reactions are those of people who have had the rug pulled out from under them. But Strzok is nonetheless Slick willy's faithful child in his "deny, deny, deny" testimony. Why of course his efforts were devoted to defeating Trump. That he should advance any other conclusion is incredible.

  5. Jack, I suspect you're right that some in the younger generation are so steeped in political correctness and "social justice" blather that they can't conceive of another way to think (despite their protestations of moral relativism). Leftism can be reduced to a morality play, in many ways: good versus evil. Thus, all the liberal true believers need to know about anyone he with us or against us? The rest follows naturally.

  6. Dr. Waddy: I agree that the left probably does look at it that way. And perhaps in 1917, when some of the worst aspects of capitalism still obtained, this could have been a credible view. But modern leftists conveniently ignore a century in which their views were given a thorough objective test; in practice they proved to be a guarantee of incalculable evil. Meanwhile, free enterprise and intellectual proliferation has brought more and more of the world to a standard of living which goes far toward the definition of a good life. Evil is as evil does and the modern left would do much of more it if they could.

    Yeah, when leftists advance morally relativistic views they are really saying "our views are good, yours are bad". "Don't be 'judgemental' ", (though they would be loath to define the term because they know it would be reductio ad adsurdum in a NY minute)they reflexively chide. Actually they thrive on judging others (maybe that's why they want to be Judges).

  7. Well said, Jack! It strikes me that so many words employed in politics are bent this way and that to serve the interests of the speaker. "Tolerance" is one of them. In the end, we're all "tolerant"...except when we're not. And that's, of course, where things get interesting!

  8. Dr. Waddy: Yeah, I knew an administrator who had a sign saying "tolerance" in his office but was reflexively dismissive of conservative views. Tolerance of what?