I was reading a conservative lauding the nomination of Brett Kavanaugh the other day and he said that most importantly, once confirmed the nominee would read the original constitution and not "dispense justice." Heaven forbid.
I am not a lawyer or a constitutional scholar, please don't ask me to try to explain the difference between originalists and textualists, it is frankly beyond me. Historical intent versus original intent, it is all very confusing. And unfortunately our constitutional framers didn't always agree on what things meant way back when. By the way, the term originalism is relatively new, entering the common lexicon in 1980. We also used to have pragmatists, intentionalists, natural law theorists and gap fillers but the latter ilk are now as rare as white rhinos.
Any how we have to put ourselves into the long dead minds of our forefathers way back in 1787, when a black, native american or woman had no legal rights. Helped if you owned land too.
The current vogue among members of the Federalist Society, those conservative stalwarts who pick our Supreme Court justices for us these days is simple. A nominee should have gone to school at Yale or Harvard, and earlier than that, Georgetown Prep, be Catholic or failing that Episcopalian, pretend to be entirely non partisan and non ideological at the conformation hearing and then once appointed, deliver a string of rulings for the conservative side. And they must belong to the Federalist Society.
Brett Kavanaugh has written a lot of opinions on the apellate court, some three hundred. He is an academic and strict originalist, who pretends that we live in a perfect world. He overturns environmental regulations with the apparent ease of somebody killing ants at a company picnic. A pretty good synopsis of his environmental rulings at Slate. He also hates the CFPB, It is true that there were units in the SEC that could have protected consumers prior to the creation of the CFPB, but the reality is that they rarely if ever did. He champions executive power and despises anything that would bite into executive privilege. He maintains that congress has to pass the laws, judges can't legislate from the bench.
It is well and good in theory to leave it to the legislature to legislate but let's look at the reality of Congress. Both houses now controlled by the Republicans, they themselves can not agree on, let alone pass, anything, within their own party! Stuck in a dysfunctional miasma while the country disintegrates.
Letting the perfect be the enemy of the good is a recipe for letting the wolves take over the henhouse, the same wolves who fill his party's coffers. You figure it out.
Witness the recent immigration fiasco for a case study on Congressional ineptitude with the GOP running the show. Ar least Justice Kennedy was pragmatic at times, but these SCOTUS divas hurt and sometimes kill real human beings with their academic purity. They consistently elevate the corporation over the individual.
I hate to say this, I really do. But I fought a long term fight against cancer that was caused by benzene exposure, and methyl ethyl ketones. I am pretty sure I know exactly when it happened, got into some paint at my sign shop that I had no business using. Aircraft paint inadequately marked with warnings. And I fought bladder, kidney and ureter cancer for a little over 25 years in total.
Perhaps if the disease that killed my brother and almost killed me was visited upon these judges in some small measure they would start thinking about the real world implications of their enabling polluters and chemical companies with their legal sophistry. Maybe if Neal Gorsuch broke down in his car in Colorado and nearly froze to death in the ice and snow he would think twice about his horrible decision in the frozen trucker case.
The court is getting farther and farther away from representing the ideological mindset of the majority of our nation. Leonard Leo and his federalist cronies represent the worst thing to happen to American jurisprudence in memory. I shudder to think about what is to come.
Vox has an excellent article on Kavanaugh's shell game.
...So we cannot allow executive agencies to regulate aggressively because that would step on the prerogatives of Congress, but we cannot allow Congress to set up an aggressive regulatory agency because that would step on the prerogatives of the president.
But where a progressive judge might see judicial intervention as primarily warranted in order to protect the powerless against assaults from the powerful, Kavanaugh and the conservative legal mainstream see it as a tool to protect business owners from majority rule. If one is a sufficiently unprincipled liar — which Brett Kavanaugh certainly is, as we saw in his remarks after Trump introduced him to the nation — one can dress this up in the language of democracy or originalism or whatever else.