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A remarkable resemblance

Judge Brett Kavanaugh's confirmation hearings to be a Supreme Court justice will take place in the shadow of the nomination of John Roberts to be chief justice 13 years ago.

Roberts was confirmed on a 78-22 vote in 2005. But some buyer's remorse about Roberts has set in since then.

His liberal critics think he hasn't lived up to his promise to the Senate to "call balls and strikes" as a justice, and has instead been batting for the Republicans: voting to narrow affirmative action programs, weaken the Voting Rights Act, subject abortion to restrictions, and deregulate campaign finance.

The conservatives seize on a big exception: Obamacare. In a 2012 case, all the court's Democratic appointees voted to uphold the Affordable Care Act's requirement that nearly everyone buy health insurance. All the court's Republican appointees except for Roberts voted to strike down that requirement and with it the whole law. Roberts, as the fifth vote, split the difference. The requirement, he ruled, was unconstitutional. But it could be reinterpreted as a tax on a person going without health insurance, and if it were so interpreted it was constitutional. So Obamacare stayed.

The conventional wisdom on the right became that Roberts had come up with a rationalization to spare himself criticism from President Barack Obama and his allies.

Enter Kavanaugh. Like Roberts, he is comfortably ensconced within the Republican establishment. After watching Roberts in action, though, Kavanaugh's Republican-approved smoothness reads to the left like a stealthy way for a right-wing ideologue to get his way. And to portions of the right it seems like a sign that he won't be a reliable ally when the chips are down.

While Trump was selecting a nominee to replace retiring Anthony Kennedy, conservatives scoured Kavanaugh's records looking for evidence of weakness. They found some rulings that concerned them, but they read them as critically as they did because they came to them with the fear of "another John Roberts."

None of this is to say that Kavanaugh is going to have trouble getting confirmed. The concern on the right will not keep Republicans from closing ranks behind him now that he has been nominated.

Thus Kavanaugh seems likely to get on the Supreme Court where, in a final irony, he could well be an obstacle to one of the chief justice's major projects.

Editorial on 07/11/2018

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