Soutered Again?

Many conservative friends could not contain their excitement when the final vote for Judge Kavanaugh was announced. Many rushed to their Twitter account to predict that Roe v. Wade would soon be consigned to the ash heap of history.

The histrionics of the looney left mirrored the excitement on the right. We smiled at the scenes of unhinged demonstrators pounding on the metal doors of the Supreme Court. Those scenes will be remembered for a long time.

We will also remember the anticipation, waiting for the 3:00 announcement of Maine’s Senator Susan Collins. When she finally delivered her speech on the floor of the Senate, neither side could wait for her conclusion. It was high drama. Her remarks were both reasoned and principled. Whatever you may think about Senator Collins, she is her own person. She did what a Senator is expected to do. She asked tough questions and listened carefully to the answers. She was not intimidated by the hate-filled, angry mob. She came to her own conclusions and announced them in calm and measured tones.

It was branded as one of the greatest Senate speeches in recent memory. That may say something about the quality of the oratory of her contemporaries. But, it was a good speech. She used a razor to slice through the disgusting muck that Democrats had thrown at this good man.

The Left predictably and immediately unleashed fire, furry and vitriol. They pledged millions to defeat her in her next election. Traitor! She would be forever banished from the feminist plantation. How could she turn her back on her gender?

The Right just as predictably heaped high praise on her. She had become a genuine statesman (stateswoman?) in their eyes. Carving a special place in history.

What both sides seemed to have missed is what she actually had said leading up to her historic announcement. She recounted the nearly three hours, both in her office and on the phone, that she had spent with the Judge. Senator Collins reviewed the questions she had asked and how he had answered them. Those answers should give pause to the celebrants and comfort to his detractors.

We have been repeatedly assured that Brett Kavanaugh is a solid constitutional conservative. That he will be a critical ally in the drive to restore sanity to the court. This is a court that from campaign finance to gay marriage to ObamaCare has been an embarrassing disappointment. All of those decisions were decided by Republican appointees. Justices that we had been assured would be “solid”. To say that they have tried to steer clear of matters that should have been decided by accountable elected officials is laughable.

Review for yourself and listen carefully to what the Senior Senator from Maine told us at https://youtu.be/LJRdMh1XhAY

She repeatedly called Judge Kavanaugh a centrist. She reinforced that point with several examples. On over 93% of the cases jointly decided, he and Judge Merrick Garland concurred. Was it a Garland fellow traveler that we had in mind? Lisa Black, who clerked for Justice Ruth Bader Ginsberg and has argued more cases in front of the Supreme Court than any other woman, offered high praise for Kavanaugh. Black is a self-professed staunch defender of Roe and said that he “fits within the mainstream of legal thought.”

Kavanaugh called Marbury v. Madison one of the four greatest Supreme Court rulings. This is the bedrock ruling upon which all judicial activism is built.

Senator Collins reminded us that Kavanaugh had tried to find middle ground on the matter of forcing religious orders to offer contraceptives to employees. Fine. But, he went further. He offered that this was “settled law” citing Griswold v. Connecticut and that the “government had a compelling interest in facilitating access to birth control.”

But, it was his reverence to precedents that was most troubling. Collins clearly probed deeply on the 45 year old Roe decision. He told her that past decisions become “part of our legal framework.” He added that precedents are not merely judicial policy, not a goal, but a constitutional tenant. That they were “not to be trimmed, narrowed or overlooked.” When she asked about Planned Parenthood v. Casey, (a decision co-authored by Justice David Souter) he told her that it was “precedent on precedent.”

Somehow legendary philosopher Yogi Berra comes to mind. Is this deja vu all over again?

We can all celebrate that Justice Kavanaugh survived the ruthless assault on his character. But, exactly what kind of a Justice he will become remains an open question.

In Collins speech, one of the reasons she supported him was his judicial temperament/actions to support the doctrine of stare decisis - i.e. once the Court has decided then subsequent decisions would respect such decisions. Collins may have been using that as cover or hope for his maintaining Roe, as she cannot come out and ask him how he would decide.

In recent 50+ year history, with the politicized court, stare decisis is important for democraps to maintain leftist Court decisions, but irrelevant when it comes to “originalist” decisions that are opposed to leftist legal interpretations.

I am not so sure that Roe v Wade can stand on its own today. While it has been over 30 years since I read it, what struck me back then was that the majority opinion stated that no one knew when life began. This was important to overcome the hurdle of the “right to life”. Once life begins, the state has an interest in protecting that right. The other thing that struck me is that the majority recognized a state interest in regulating abortion in the 3rd trimester. Hence the Roe justgices knew there was enough evidence to show a human being in existence in the 3rd trimester. The leftist laws/decisions since then have more or less ignored this part of Roe. The political left wants everyone to believe that there are no limits to abortion. But the left also knows, because they have effectively used it in advancing their cause, that the practice of political incrementalism needs to be avoided on abortion. If abortion is eroded or banned in the 3rd trimester, people will be told why, and with the advancement of science, then the question becomes why should we not ban abortions in the 2nd trimester ... after all technology exists to sustain a life less than 26 weeks. Then once that is in place, ... why should not life be protected when it really begins - effectively banning abortion?

If stare decisis were judicially immutable principle for overturning any prior decision, then Brown v Board of Education should never have been granted a hearing. But new facts developed over decades that challenged the viability of Plessy v Ferguson. The Chief Justice in Brown wanted the Supreme Court to come out 9 - 0 as he wanted no question as to its overturning such precedent, among other things. With the political court that we have today, one would never get a 9 - 0 on overturning Roe. But that should not stop its being overturned, as the left has had no problem implementing major social and political change through the Court without a 9 - 0. However, there is enough science and law to marginalize politically the opponents’ reputations, making them akin to the slave owners of times past - to be vilified in the future ad eternam.

One last point, while I have not read any articles on the overturning of Roe, I am generally aware that there are “liberal” legal articles out there who today view Roe as wrongly decided. So if it were overturned, they believe that abortion may continue - only in that it is not a federal issue ... but a state issue - to be decided at the level as to whether abortion should be legal. Some on the right have voiced this opinion long long ago, over the decades, only to be criticized by the left... until now. Whether states’ rights with the advancement of biology/genetics knowledge would be able to overcome a constitutional right to life is not certain, for such right to be taken away would require a compelling state interest .... is now another question. If the ever wise and all-knowing Roe Court had decided Roe on states’ rights to begin with, I think Roe might be in a stronger position today under stare decisis. However, it could still be challenged, using the same tactics and some of the arguments that the left has used with regards to capital punishment.

Sorry for the long winded answer to your good, succinct observations. I need to work on my verbosity problem. But I will conclude that for someone like Kavanaugh, there is enough other legal precedent and other judicial doctrines to overcome being handcuffed by stare decisis on Roe - without violating his general belief / practice in the doctrine of stare decisis should Roe be challenged. The question of course is would he vote to overturn Roe?

Exactly. Wait and see. I don’t think he was billed or sold to us as a “solid Constitutionalist conservative”. I think it was pretty clear that he follows the law. That might make him more a “strict constructionalist” than a conservative. He served nearly the whole 8 years inside the GWB admin.

As for him being a “conservative”, well he is GOP for whatever that is worth. And we may have received a clue about what he stands for, of if he has been “enlightened” by the way he was treated by the left during his nomination. He didn’t need to make those comments about “revenge for the Clintons” and the like, but he did make them. Maybe it was calculated to rally support from conservatives, or maybe he was telegraphing that he has “wised up”.

But it is true, what we missed in all the hysteria was a good debate on what I think are important issues he should have been asked about. For example he ruled in favor of parts of the Patriot Act dealing with metadata collection. He ruled that the Constitution prohibits warrantless searches of individuals but not aggregated data collection. It was imo a bad decision. And as a side issue, there is a problem with the Government side-stepping its Constitutional limits by simply asking companies with government licenses such as AT&T to turn over data voluntarily. IMO the government should not be allowed to end-run around the constitution with loopholes by asking for information from companies that need government permits and make billions in government contracts.

But we weren’t going to get that kind of discussion because there are plenty on the left who want to take data collection on citizens much further. They want lists of gun owners. They want medical databases. Some cities even want contractors to disclose private affiliations or for banks and credit card companies to deny services to groups and industries they disprove of. The CTRL+Left statists want to know everything about everyone as another tool of control. Just look at the way they try to control the narrative and destroy anyone who strays from their dogma. They are a vindictive bunch who would ban free thinkers from their island - some of these TV idiots openly called for Kanye to be “re-educated”, though they put it in terms like “he should not speak publicly until he receives psychological therapy”.

And that is deliberately couched to sound compassionate when it is really all about control. In France a court has ordered Marine Le Pen to psychological evaluation because they think her ideas on governance are too far outside the mainstream. This is straight Orwellian. And we know how the CTRL+Left loves to use Europe as an example of what America should become. I love Europe and Europeans, but their politics has become a cruel joke.

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