Enter SCOTUS Brett Kavanaugh – The positives and concerns


Daniel Horowitz wrote an excellent piece at the Conservative Review that Mark Levin suggested reading. I made a special effort to catch Levin’s program as I was curious as to Mark’s take on the SCOTUS pick. The big concern was Kavanaugh starting the ball rolling with the Obamacare as a tax. I suggest wandering over to the Conservative Review for a balanced view and thoughts on the judiciary.

The full podcast is out there at Levin’s website and on YouTube if you want the full thing. I agree with Mark. Let’s ask some questions. Must we follow and support blindly? Or can we raise questions without feeling disloyal to Trump?



Below are some points:

Here are several concerns that conservatives should research thoroughly throughout the confirmation process and Kavanaugh’s meetings with senators:

  • Obamacare regulation as a tax: In Seven-Sky v. Holder (2011), Kavanaugh wrote a dissent opining that the individual mandate of Obamacare could not be challenged in court because, under the Anti-Injunction Act of 1867, no lawsuit can be brought until the plaintiff actually was forced to pay the tax, which in this case wasn’t for another few years. I’m a big stickler for courts staying in their lane and properly abiding by rules of standing, but in this case his entire rationale was built upon a dangerous premise that a government mandate/penalty was really a tax. This served as the basis for John Roberts’ infamous opinion upholding Obamacare.


  • Endless standing to rip God out of the public square: In Newdow v. Roberts, an infamous atheist sued to take the words “so help me God” out of the presidential oath of office. Aside from it being insane to suggest this violates the Establishment Clause, the notion that a random person could get standing to sue and that this is even a justiciable case violates the very essence of what distinguishes a court from a legislature. It lies at the core of what is allowing the ACLU to shut down our civilization for years with radical forum-shopped lower courts. While, in his separate opinion, Kavanaugh ruled the right way on the Establishment Clause, he held that the plaintiff indeed had valid standing to sue as “offended observers.” This is the type of nonsense that is plaguing public prayer and display of the Ten Commandments across the country. It is simply astounding for any originalist to disagree with other justices in granting such standing and is very consequential for cases that will reach the Supreme Court soon. Kavanaugh hid behind Supreme Court precedent, but admitted that the high court never directly addressed the issue of this type of standing.

These rulings taken together, Kavanaugh is essentially saying that a random atheist with an obscure and abstract claim against a presidential oath can get standing, but individuals directly forced to purchase a private product and engage in commerce couldn’t get standing.

  • Contraception as a “compelling government interest”: Almost every circuit upheld Obamacare’s contraception mandate. Like most of the originalist judges, Kavanaugh dissented from these opinions and sided with plaintiffs in Priests for Life, which is good. But what is still puzzling is that he gratuitously and explicitly conceded that the government has “a compelling interest in facilitating women’s access to contraception.” While the Supreme Court did assume that the government might have a general interest in promoting contraception, the court never assumed, much less ruled, that such an interest would apply to the narrow subset of employees at religious institutions. The fact that he didn’t join the stronger dissent from Judges Brown and Henderson – built upon the premise that the government must find a compelling interest specifically in mandating “seamless” coverage – raises concerns that we won’t see him categorically opposing the Left on these issues and joining Thomas on the court.


  • Immigration: Immigration is perhaps the most important issue winding through the courts now, and most of the nominees had thin records on the issue. I haven’t seen anything big on the fundamental issues of the plenary power doctrine, for better or worse. However, as we reported last year, the D.C. Circuit absurdly granted an illegal alien the right to demand access to an abortion. While Kavanaugh rightly dissented on the grounds that the opinion drastically expanded abortion jurisprudence, he declined to sign on to Judge Karen Henderson’s indispensable dissent, finally laying down the law on sovereignty and the plenary power doctrine. That was a much-needed dissent, given what is going on throughout the circuits on immigration, and it is a bit peculiar that he didn’t sign on to that dissent, while Henderson signed onto Kavanaugh’s dissent tackling the abortion angle.


“At least he’s a lot better than the other side” is no longer good enough. If we are going to accept the premise, as the president himself did last night, that “The Supreme Court is entrusted with the safeguarding of the crown jewel of our Republic, the Constitution of the United States,” we can’t afford to settle for anything less than the best. The aforementioned concerns notwithstanding, conservatives should be happy with much of Kavanaugh’s record but should look a little deeper before jumping in with both feet.

Full thing at Conservative Review 


15 Responses to “Enter SCOTUS Brett Kavanaugh – The positives and concerns”

  1. Mustang Says:

    Sigh … there just doesn’t seem to be enough red wine.

    Liked by 1 person

    • bunkerville Says:

      Maybe its time to get to the hard stuff!! 🙂

      Liked by 1 person

  2. the unit Says:

    Meanwhile CNN says the world waits for Trump to meet Putin.


  3. Steve Dennis Says:

    I knew about his stance on immigration but the others I didn’t know about. Thanks for the information and I hope this pick works out but I am very troubled learning he started the ball rolling on redefining the mandate as a tax.

    Liked by 1 person

    • bunkerville Says:

      Part of me wants to keep at it, and the other is just bury my head in the sand and let it go…and just say it is what it is…. More worrisome he supports collecting Meta Data on all of us…. still..there are questions he may have good answers for at his hearing.

      Liked by 2 people

      • Steve Dennis Says:

        I hear you, it is a tough call. I think we just have to let this play out while at the same time writing about concerns when they come up.

        Liked by 1 person

  4. the unit Says:

    Who said “judges are everything”? They be men and women who aren’t angels (ref. Madison quote 🙂 )
    Like y’all, can read all the pros and cons. Like one commenter here said, a crap shoot whether or not we get a devil.
    Here’s just an opinion, which I think pretty good, of what were up against here and worldwide.

    Liked by 2 people

    • bunkerville Says:

      Yea, we are really homaginizing aren’t we??

      Liked by 1 person

      • the unit Says:

        Whot do I know? Y’all be putting me out to pasturize before long. 🙂

        Liked by 1 person

  5. petermc3 Says:

    After listening to both pros and cons from the conservative perspective, opining on Trump’s pick of Kavanaugh fostered by his working soup kitchens and coaching his daughter’s basketball team, once again an old time street adage comes into play here and pretty describes this quandry , “I don’t know whether to shit or go blind.” Even so my gut tells me to chalk up another win for the left.

    Liked by 1 person

    • bunkerville Says:

      You read my mind. I was just going to reply to you that I don’t want to hear one more word about the damn soup kitchen and coaching his little darlings. I don’t want a Saint. I wondered if you caught my stuff on Foster and this fellow? I know you were off the grid last week as were many….The ultimate Manchurian candidate

      Liked by 1 person

      • petermc3 Says:

        I caught the Foster clip which should be titled “The Clintons, Above The Law.”

        Liked by 1 person

  6. bydesign001 Says:

    Good write up, Bunkerville. I plan to follow up with Mark Levin on CRTV this evening once I return and my grandson is settled for the evening. Like you, I’m concerned since we all know that if he has the blessings of the DC swamp, something is amiss.

    Liked by 2 people

    • bunkerville Says:

      I was starting to feel as if I should be guilty for not flying the flag for this fellow…CNN has a story out that the Dems will be requesting all of Kavanuaghs documents when he worked for Bush…which means this ain’t going nowhere!
      Mark was good last night. Caught his program at the Mark Levin website…I love talkstream radio as well.

      Liked by 1 person

      • petermc3 Says:

        Agreed. Levin’s show last night was spot on, not to be missed.

        Liked by 1 person

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