Judge Kavanaugh's future record on religious liberty cases will likely resemble that of Justice Kennedy.
The old Democratic playbook on Republican Supreme Court nominations will no longer work for the Gorsuch confirmation hearings. Democrats used to spend much of their time talking about the importance of precedent and demanding that nominees follow it. The point, of course, was to protect one particular precedent above all—Roe v. Wade—and more generally keep alive the precedents favoring liberalism that were minted in the Warren and to some extent Burger and even Rehnquist eras.
But this approach no longer fits the times. One reason is multiplication of precedents that the Democratic base wants overruled. Citizens United is the best example. Hillary Clinton was even going to make its overruling a litmus test of her judicial appointments. But there are others too. Senator Schumer has already complained in the context of this nomination about Shelby County v Holder, which found a portion of the Voting Rights Act unconstitutional. And few cases enraged the left like Hobby Lobby, which held that closely held corporation had religious freedom rights under the Religious Freedom Restoration Act. More generally, given that liberals have not been a majority on Court in several generations, there is growing body of precedent they do not like.
And much of the Democratic party too is changing to become more openly radical. Thus, its base is not satisfied with simply standing on past precedent while hoping that the Court will drift their way. It wants the Court to be a more active partner in progressive social change.
This creates a dilemma for Democrats. The very important advantage of prioritizing precedent is that that appears to make them adherents of following the law, where the law is defined as the past case law of the Supreme Court. That allows them to do battle with the alternative legal position advocated by many Republicans: follow the Constitution as written because that is the law. But if there are some contested precedents Democrats want to retain, like Roe, and many other contested ones they want to discard, they need a new position.
Of course, the easiest party line is the simplest: the nominee should follow the contested precedents that reflect the preferences of the Democratic party and reject those that don’t. But that is too nakedly a party line, because the public does have some appreciation of rule of law values. Obama’s formulation of wanting empathetic judges is not much better because it is readily seen as expressing selective empathy toward groups favored by the Democratic party. Sonia Sotomayor is an exemplar of such selectivity.
Of course, one could look to academia for non-originalist theories of law to create an entirely new playbook. But the problem with these theories is that they strike the public as less plausible accounts of law than originalism or following precedent. Ronald Dworkin who advocated a moral reading of the Constitution recognized that even judges would not admit to making a moral enteprise of constitutional interpretation. And I have noted before that when academics testify before Congress they leave their distinctive constitutional theories behind and make some variation on textualist and originalist arguments, even if they are bad ones. As hypocrisy is the tribute that vice pays to virtue, so a faulty reading of text often is a tribute paid to originalism. Look for some more of that at the hearings to come.