from Conservative Review:
Putting Kavanaugh in perspective: The positives and the concerns
Who would have thought that in 2012 we’d nominate the godfather of Obamacare to run against Obama in the presidential election? Probably the same person who would have predicted Trump would nominate the man who crafted the foundation of Roberts’ “Obamacare is a tax” premise on the lower court. Yet here we are, with Judge Brett Kavanaugh of the U.S. Court of Appeals for the D.C. Circuit as the next Supreme Court nominee. He’s undoubtedly much better than the man he is replacing, but he’s unlikely to be the Clarence Thomas we need at this juncture.
Kavanaugh was always considered the front-runner from day one by the D.C. legal elites. Mike Lee was never seriously considered. I’m all for moving Kennedy’s seat to the right, but if the legal elites in the Republican Party will do nothing to fight judicial supremacy other than “appoint good judges,” shouldn’t we find the best?
So is Kavanaugh the best we can do? Time will tell where he stands on some of the critical doctrines on the Constitution and the role of the courts. He is clearly solid on the Second Amendment and on fighting the growth of the administrative state, as all of the Federalist Society-approved candidates are. Kavanaugh is particularly heralded for his scholarly takedown of the constitutionality of the CFPB in a recent case.
Where is he on some of the other critical issues?
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.