Two different lines of attack have been launched against the nomination of Judge Brett Kavanaugh, now of the Court of Appeals for the District of Columbia Circuit, to replace Anthony Kennedy on the United States Supreme Court: one personal and one substantive. On the former I have little to say, except to note Yale Law School Professor Amy Chua’s glowing endorsement of Kavanaugh in the Wall Street Journal. Of far greater importance is the attack on his intellectual orientation, both generally and as it relates to specific issues that have come up already, and that will surely come up again before the Supreme Court.

On these issues, the progressive forces aligned against Kavanaugh have given no quarter. The chief object of their intellectual denunciation is the Federalist Society, with whom I have been actively involved since its formation in the early Reagan years. The great success of that organization, as the New York Times columnist David Brooks has recognized, is its single-minded devotion to a long game in which the study of first principles is the main object of intellectual inquiry. The basic insight is that every political movement needs strong intellectual foundations to insulate it from the passions of the day, and that the free exploration of ideas is the best way to achieve that end. The Federalist Society took off in the early 1980s precisely because the dominant liberal ethos of the time was so sure of its political and moral invincibility that it had not taken the time to develop its own comprehensive view on the fundamental relationship between the individual and the state.

Nothing much has changed since then. The utter absence of that foundational work is evident from the legal left’s unthinking and overwrought denunciations of Kavanaugh’s nomination. To indignant progressives, no candidate of libertarian or conservative persuasion is fit for a seat on the Supreme Court. That much is evident from the juvenile criticisms of the Kavanaugh nomination by a group of progressive senators who fear he will undo much of the modern New Deal state. In a similar vein, a group of Yale Law School students and alumni announced that they were “ashamed” of their institution and its Dean, Heather Gerken, for praising a nominee whose positions they found utterly unacceptable because, among other things, Kavanaugh penned “a 2015 dissent arguing that the ACA’s contraceptive mandate violated the rights of religious organizations, even though those organizations were granted an accommodation that allowed them to opt out of providing contraceptive coverage.” Michael Waldman, the President of the Brennan Center for Justice, described his nomination as “an alarming day for the law of democracy” because “the Roberts Court has been activist, relentless and destructive,” citing as support the rulings in Citizens United v. Federal Election Commission (2010) dealing with corporate speech and Shelby County Alabama v Holder (2013) “gutting the Voting Rights Act.” To New Yorker commentator John Cassidy, Kavanaugh is “an ‘extreme nominee’ whose confirmation would represent an imminent threat to Roe v. Wade and the Affordable Care Act,” and should be rejected by anyone “who harbors a sense of fairness and history.”