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Kavanaugh: I wish I had more to say

While the nomination of Brett Kavanaugh to the Supreme Court may be the most important recent event in U.S. politics from the perspective of social conservatives, the final evaluation of its significance will be possible only in hindsight.

As is so often the case, it is necessary for the confirmation of a justice that we know very little about what we are all most interested (not to say anxious) to know: Would he rule to overturn the judicial over-reaches of Roe and Obergefell if he were on SCOTUS? If the Republicans had a stronger Senate majority ("strong," including in the sense that there would not be defectors in the event of a close vote), perhaps we could afford to know more. As it is, we could very easily face an uphill battle for Kavanaugh's appointment simply because of kneejerk opposition by the left, only to discover that he is the new Kennedy or Souter. His record does not say.

The exchange with Senator Schumer back in 2006 concerned Kavanaugh's predicted behavior as a lower-court judge, where he would undoubtedly have considered himself bound to follow higher-court precedent (even a solid judge might well have thought so) and does not tell us what he would do about Roe were he on SCOTUS.

Other concerns noted about him tell me, at the most, that he is a cautious man. That is perhaps a bad sign in itself, since standing up to the wild-eyed social pressure to uphold wretched SCOTUS precedents on social issues will take a man with backbone, but one doesn't want to read too much into it. Nor can we say anything too negative based on the fact that he was Kennedy's clerk. So was Gorsuch, who has not (yet) done anything seriously disappointing on the court.

And we should always remember, sadly, that someone else may "chicken out" when it comes to overturning so socially "hot" a precedent as Roe or Obergefell--Roberts, say. Could someone else take up the mantle of Kennedy once Kennedy has retired, though perhaps with more intelligence and a little more principle? It's not at all impossible.

One rather odd thing I've seen people saying recently on Facebook that I really think we should not be saying: That is, that it would be possible to say that one isn't "overturning" Roe while effectively gutting it. I actually saw someone say that it would not be overturning Roe to rule that the state has a compelling interest in outlawing most or all abortions. Hello? It was one major component of Roe (upheld later in Casey) that the state's interest in regulating abortion is only very limited--existing only within limits very carefully circumscribed by those rulings. One might say that Casey rolled back (a little) those limits on the state ability to regulate, though the more recent Hellerstedt was more radical than either Roe or Casey.

Is an overturn of Hellerstedt the most we can hope for, after crawling over glass for decades to try to get Roe reversed? Whoop-de-doo. It's only been around since 2016 anyway.

But let's not pretend: To rule that the state has a serious interest in restricting abortion, beyond what was allowed by either Roe or Casey, would be to overturn Roe. Any justice on the Supreme Court who is inclined to have cold feet is not going to be reassured by the suggestion that he maintain a pure legal fiction that abortion is a constitutional right while gutting it in practice by allowing prohibition by the states back into, say, the first trimester. That would be a blatant ruse, ripe for overturning in itself by a more consistent court at a later time.

And in any event, just how good is a justice (from any principled, originalist perspective) who wants to maintain such a transparent lie about the Constitution? What else will such a justice rule, or uphold, if he cherishes the claim (however qualified in practice) that abortion is a right found in the Constitution? Let's not play games.

Meanwhile, we wait.

We conservatives are often just a tad desperate to find indicators--either good or bad. I still recall a phone conversation in 1990 about David Souter when he was facing confirmation hearings. A good friend told me not to worry too much about the fact that Souter was a dark horse, because he had heard that Souter liked the 1928 Book of Common Prayer. Lover of the BCP though I was, I found that a weak argument, a case of taking "lex orandi, lex credendi" much too literally. We all know how that nominee turned out. Please God, no more Souters.

Right now, I wish I knew much, much more about Brett Kavanaugh than I will find out until and unless he is confirmed and starts writing serious SCOTUS rulings in the relevant areas. Reading tea leaves is, and always has been, a subjective and unreliable way of getting information and making predictions about the real world.

Fellow conservatives, put not your trust in princes, and pray.

Comments (13)

What did you think of Amy.B.C

It sounded like her writings as an academic made positive statements about originalism, so that was good. My impression (though very fallible) is she would have been more worth fighting for than Kavanaugh, and it isn't clear to me that the fight would have been much harder, since the left is going to freak out and do all they can to oppose no matter what.

since the left is going to freak out and do all they can to oppose no matter what.

Perhaps the main point is to not get a nominee that the RINOs feel so worried about that they turn against him. Are there RINOs who would literally vote against approving a good judge who would be willing to overturn Roe? Probably - if the nominee were outspoken enough to make them feel his opposition to abortion might actually amount to something real, I guess. So, we'll only nominate someone who opposes abortion softly, or ineffectively? What strange bedfellows politics makes.

I wonder if a nominee could succeed by holding to a steadfast repetition of "I stand by the rule of law" and then, in 50 different ways, elaborate on "rule of law", in such soft and ambiguous terms that it can sound OK even to moderate libs, but all the while actually meaning "original meaning of laws actually written" and not made-up penumbras. I haven't paid attention to how those hearings actually play out in a long time, but my poor recollection is that since the nominees ALWAYS say things like "I could not possibly theorize without the actual facts of a real case in front of us" (and then, of course, they cannot comment on actual cases still in proceedings), they can pretty much make any kind of hay they want out of platitudes and generalizations.

I also wonder if a nominee would get shellacked if they quoted the liberal law professors who admit point blank that Roe was a bad ruling, in legal terms.

A good nominee can certainly play sufficiently close to the vest that it is difficult even for wild-eyed pro-Roe Senators to find anything to point to in his testimony to fault him with. In a scenario where they push him too hard to answer specific questions, he can simply say that he considers those inappropriate questions and won't answer them. I believe Kavanaugh may have done than when Schumer asked in an earlier hearing what his personal opinion was of Roe. For one thing, if they answer questions that are too specific, they can be pressed to recuse themselves later if they *actually* have a case to hear on that subject.

The problem then is that those doing the appointment or fighting to get the appointment through the Senate must also be left in the dark. When one justice (I think Gorsuch) said he would have walked out of the room if Donald Trump had asked him if he'd overturn Roe, some silly people thought that meant that he was saying he wouldn't overturn it! That's not what it meant at all. It meant that it would have been unprofessional for him to be pressed in that way by the President and that his own professional conscience would have caused him to respond dramatically to any such pressure from the President thinking of nominating him.

But where does that leave us? We have to get all of our information in highly indirect ways before going through all the hoops to get someone on the court. At best, one might have a chain of several "messengers" culminating in someone who had talked privately with the justice about these matters, and then one would have to trust the chain, so that one could honestly say, "I never asked him about x."


I also wonder if a nominee would get shellacked if they quoted the liberal law professors who admit point blank that Roe was a bad ruling, in legal terms.

If he quoted them and didn't say he disagreed with them, sure. It would make the nomination harder. And there would always be the worry that someone hyper-conscientious might later recuse himself in a reaction.

My own opinion is that it shouldn't be that way. A prospective justice should be able to say in plain language that Roe was a legal abomination and that he would certainly rule to overturn it if he were given the opportunity on the appropriate court, and the same with Obergefell, and he should be voted through by a solid majority of senators. But that isn't very realistic, I'm afraid.

It's not realistic, Lydia, but I did hear one interesting take on the problem. That is, when you look at the actual polling for someone like Collins, the voters she is most likely to lose that will cause problems for her are not liberals who will bolt for the Democrat; rather, it is the Republican primary voters who would abandon her in a primary, where because of her liberalism on such questions she routinely clings to a bare 48% plurality of her party's base. So the real threat to her political standing comes from her right. I don't know enough about the politics in those particular states to take an educated stand one way or another, but if true it would indicate that jockeying to be the crucial vote in every contentious situation has as much to do with her posturing on these issues as any real electoral problems she might face at home.

Whatever the case, the Republicans needed a nominee this time around who would get through the nomination process without producing any whip headaches for McConnell. Their majority is so thin and the McCain factor such a problem that I would guess they were in no position to take chances. Moreover, this close to the midterms the GOP wants the conversation to be about issues that actually help them, and there are few issues more motivating to Republican voters than good, solid judges. The same isn't quite true of things like abortion where the base of the party is more divided, and while you and I know that the Democrats will attack any Trump nominee on those grounds, the "culture war" notes evoked by a candidate like Amy Berman-Jackson would make the Left's job infinitely easier. As it stands, they're losing the argument and making fools of themselves, and the squishy middle is mostly going to see the partisan screaming for what it is, when faced with a judge like Kavanaugh (who has few creditable weak places in his political armor).

Finally, the Trump White House may be calculating that the Democrats are being put in a position with this nomination to fight loudly and stridently for something they stand almost no chance of delivering (much the same position as the GOP was in for most of the Obama Presidency). The way the debate is going, I think McConnell would be happy having this as an issue right up to Election Day, and I'm not sure he'd feel quite the same if the candidate was Berman-Jackson. As it is, Schumer is constrained to talk about pulling out all the stops, mouthing the same hysterical rhetoric, but without much chance that it could pay dividends in the form of an actual political victory heading into November.

All this is not to say that I'm not at least a little bit disappointed. I'm no expert on administrative law, the area where Kavanaugh is said to be such a boon for conservative jurisprudence on the Court. But the nomination doesn't surprise me either, and it may just be that the White House expects to be in a position to make a bolder pick some time between now and 2020, which will be nigh-impossible if they don't make it through November with their Senate majority firmly intact. Right now, the Minority Leader is talking about abandoning Manchin in his reelection bid if he goes soft on this nominee which, although it might be an empty threat with some kind of handshake agreement between them behind the scenes, certainly isn't how Senate Democrats would whiteboard a nomination process that was going well for them.

I'd feel more resigned to that political calculus if it weren't for the fact that an appointment to SCOTUS is for a lifetime. So if Kavanaugh is weak on these things, we're stuck with him for a long, long time. But I don't want to sound too gloomy, because I don't now that he's weak on them. I just don't know, either way. And that's a sad thought. This is one of the most powerful positions in the land (which it should not be), and our elected representatives have to work hard to appoint black-box candidates and hope for the best.

This is yet another reason why (at the risk of touching nerves with some who might read this) presidential elections cannot be viewed with such frenzy because of the Supreme Court. The best President in the world is to a large extent going to have his hands tied in terms of SCOTUS nominees, as a matter of practical politics.

Isn't the judicial branch suppose to be the weaker of the three branches?

Hahahahahahahahaha!

Yes, accent on "supposed to be." In fact, though, as I believe Scalia once called them, they have become "our robed masters." The saga of how that has happened is a long one and a sad one. Indeed, if some of these precedents were overturned (and I mean really overturned, not just tweaked) it would take the court's power down a peg by getting them *out* of these areas and returning them to the states and the people's legislation via their representatives. This is what Scalia always wanted, and rightly so. And it is certainly more in line with what the founders had in mind.

Yes, accent on "supposed to be." ... it would take the court's power down a peg

Yes, it would also take the court down a peg if some of the states, or (especially) states in combination with the President, went all Andy Jackson on the SC and said "let them enforce it". The Executive and Legislative powers are not supposed to bow down to the SC and say "yessir, master", they are supposed to stand up against tyranny of the SC and say no. They are co-equal branches of government. If the President is sure that an SC decision is contrary to the Constitution, he should refuse to submit to it, and take the consequences whatever they are - that's what his oath of office implies. He is not supposed to kowtow to them and allow their tyranny to overcome the executive arm.

Now that several of the states have defied the federal authority (on marijuana) and gotten away with it, we have a precedent for pushing this boundary and trying defiance of Obergefell. 4 of 9 of the Justices thought it was not just a bad decision, but "lawless".

But of course a nominee can't go around saying these things.

This is one of the reasons why Moore's turning out not to be a good guy was a bummer on a wider scale. (Aside from the objective facts of the matter concerning his past actions.) He was one of the only people willing to say such "lawless" things. Even people for whom I otherwise have a lot of respect, like David French, though of him as a kook for doing so, entirely aside from anything else. That's a shame. The only possible way for the judicial branch to be "the weakest branch," indeed, for it not to have supreme power in the land, is if it is *not* the case that all the other federal branches and all the branches of all the states defer to its diktats.

But of course a nominee can't go around saying these things.

No he can't, and I don't think that's just an artifact of the post-Roe world. Maybe I'm wrong, but I doubt that such talk would have gotten any nominee very far even prior to Roe, because the idea of judicial supremacy (and related judicial inventions such as the Incorporation Doctrine) have been with us for so long that people can't understand how it's possible to uphold the rule of law precisely by defying the lawless dictates of an out-of-control judiciary. Rule of law has been supplanted by rule by lawyers, and many people just can't see the difference. Which, to be fair, is understandable--the question "But where does it end?" is a serious one and not a simple one to answer. But that's just all the more reason for judges to exercise restraint, if they're as invested in the legitimacy of their institution as they claim to be.

Maybe I'm wrong, but I doubt that such talk would have gotten any nominee very far even prior to Roe

If anything, talk about the states ignoring the court would have been even more shocking in a pre-Roe world, precisely because there was somewhat less reason to think the court would really do something utterly insane in a pre-Roe world. All of those "gentlemen's agreements" to trust the court, not ask candidates too many questions, rubber-stamp the President's nominees, etc., were more plausible prior to Roe, though the no-prayer-in-public-schools rulings (handed down before that) and, IIRC, abolition of the death penalty, should have been warnings. Warnings that, indeed, the Supreme Court can indeed be overweening, that SCOTUS appointments matter hugely, and that mindless deference was taking away our Republic. But the warnings were not heeded, and as the Babylon Bee trenchantly stated recently (I haven't checked it but assume it's right), Roe was handed down by a court most of whose members were appointed by Republicans.

It was 6R and 3D appointed judges on the bench for Scotus in 1973, but 4 R were put there by Nixon. Before 1969, the court was more even - 5R and 4D in 1971.

A really good podcast is from the creators of Radiolab. The second installment of season one, The Political Thicket, explains how a single Supreme Court case changed the course of judicial activism. I recommend it. The podcast site is here:

wnycstudios.org/shows/radiolabmoreperfect

The Chicken

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