Posted on 10/09/2018 6:46:58 PM PDT by SeekAndFind
WASHINGTON, D.C., October 9, 2018 (LifeSiteNews) – Pro-lifers are right to celebrate the failure of the smear campaign against Brett Kavanaugh. We wouldn’t have gotten a better nominee if President Trump had withdrawn him, and surrender would have not only demoralized the conservative base but taught leftists they can get away with anything.
That being said, we can’t let our euphoria blind us to the fact that we don’t really know if our newest Supreme Court justice is the automatic anti-Roe vote the president promised us, and Susan Collins’ make-or-break speech Friday was actually a damning indictment of how little vetting we did before appointing him to lifetime power.
Yes, she defied the mob. Yes, she did a fair job of detailing the accusers’ credibility problems. But are we really going to downplay or ignore her ringing endorsements of Roe and Obergefell – or worse, her confidence that Kavanaugh agrees?
Judge Kavanaugh described the Obergefell decision, which legalized same-gender marriages, as an important landmark precedent. He also cited Justice Kennedy’s recent Masterpiece Cakeshop opinion for the court’s majority stating that “the days of treating gay and lesbian Americans, or gay and lesbian couples as second-class citizens who are inferior in dignity and worth are over in the Supreme Court.”
Here Collins is simply quoting Kavanaugh’s confirmation hearing testimony. True, he refused to call Obergefell rightly decided, and may have just been trying to get Kamala Harris off his back. But shouldn’t any degree of praise for an emotion-driven, precedent-upending legal farce (particularly coming from a professed fan of precedent) warrant further questioning?
As Robert A. J. Gagnon said Saturday, the “best that we can hope for is that Kavanaugh was intentionally misleading Democratic Senators; but then the degree of dissembling wouldn't speak well of him.”
To my knowledge, Judge Kavanaugh is the first Supreme Court nominee to express the view that precedent is not merely a practice and tradition, but rooted in Article 3 of our Constitution itself. He believes that precedent is not just a judicial policy, it is constitutionally dictated to pay attention and pay heed to rules of precedent. In other words, precedent isn’t a goal or an aspiration. It is a constitutional tenet that has to be followed except in the most extraordinary circumstances.
Collins is accurately summarizing Kavanaugh’s testimony last month. There’s some truth to this – Alexander Hamilton saw precedent as keeping judges from exercising “arbitrary discretion” and helping “define and point out their duty” – but it’s not at all obvious that precedent “comes right from” Article III’s text. More importantly, these effects are only valuable to the extent they’re upholding the Constitution rather than subverting it. And how “extraordinary” do circumstances have to be to trump precedent?
He said decisions become part of our legal framework with the passage of time and that honoring precedent is essential to maintaining public confidence [...] in his testimony, he noted repeatedly that Roe had been upheld by Planned Parenthood vs. Casey, describing it as a precedent. When I asked him would it be sufficient to overturn a long-established precedent if five current justices believed that it was wrongly decided, he emphatically said “no.”
If Kavanaugh really said that (a big if, granted), he should have been canned on the spot. Precedent can potentially trump the Constitution itself? In a job all about upholding the Constitution? As Justice Thomas was paraphrased in a 2007 interview, “If the Court has deviated from the text of the Constitution, subsequent cases adhering to the precedent only magnify the error.”
This is also why the strongest piece of pro-Kavanaugh evidence, his 2017 speech discussing Chief Justice Rehnquist’s critique of Roe, doesn’t necessarily settle things. If Collins is right, Kavanaugh might believe Roe was wrongly decided but deserves to stand anyway due to other considerations. He might overturn it if he thinks Roe is “grievously wrong” like Plessy v. Ferguson or Dred Scott v. Sanford, but “might” is the point: we don’t know, and now it’s too late.
Opponents frequently cite then-candidate Donald Trump’s campaign pledge to nominate only judges who would overturn Roe. The Republican platform for all presidential campaigns has included this pledge since at least 1980. During this time Republican presidents have appointed Justices O’Connor, Souter and Kennedy to the Supreme Court. These are the very three Republican president appointed justices who authored the Casey decision which reaffirmed Roe.
It is astonishing just how little attention this passage has gotten. Collins is essentially saying, “don’t worry about it, my party has been lying to those pro-life rubes for decades.” It’s not entirely true, of course; Republicans also gave us Rehnquist, Scalia, Thomas, and Alito. But one would assume somebody in the GOP would have a problem with one of their own bragging about the gulf between her party’s words and deeds.
Settling for stealth nominees would be one thing if we were simultaneously working on reducing the judiciary’s power or alternative ways to tear down Roe. But for years, our leaders have put all their eggs in the Supreme Court’s basket. How can the same people who demanded we take this path settle for anything less than absolute certainty we’re going the right way?
As undeserved as so much of the fawning praise for Collins is, we have to give her credit for one thing: she seems to have put more effort into investigating Kavanaugh’s views than Ted Cruz, Mike Lee, or Ben Sasse did. Now, all we can do is pray our new Supreme Court justice is who so many pro-lifers think he is – and that we don’t have to learn the hard way to take the next vacancy more seriously.
This is absolutely correct. Even if Kav or Roberts is personally pro-life, they will not have the courage to be the 5th vote to overturn this. Can you imagine the outcry of the Left if such a case were being argued and decided in the Supreme Court? That will probably bring about actual Civil War, and Roberts will not be the one to decide that. He will almost certainly vote to not overturn, even if he is personally pro-life, as it will bring about actual Civil War. Only if there are 6-7 conservatives on the Supreme Court should such a case be brought. That would be our only chance. We cannot risk it before that.
Exactly right.
The judge’s only ruling on abortion came last year, when he dissented on an appeals-court decision that allowed an illegal alien teenager in federal custody to get an abortion.
Kavanaugh wrote that the government “has permissible interests in favoring fetal life, protecting the best interests of a minor, and refraining from facilitating abortion.”
New findings - the route to rendering Roe nugatory.
“...Susan Collins’ make-or-break speech Friday was actually a damning indictment of how little vetting we did before appointing him to lifetime power.”
Underfkucing statement of the century, but for different reasons in my own case.
RvW is not law. Worse, it’s based on shaky ground.
But while everyone is fighting over a decision by the Court and the very ill-defined 2A Congress will never get anything done.
To a purpose, I say.
That is a thin strand of opinion to rely on. I agree with someone above who said K will NOT by himself overturn Roe by being the 5th vote. R will not allow it, even if A, G, T are for it. We need 6-7 for legitimacy...
Wishful thinking.The US Supreme Court answers to nobody.No Justice is bound by any promises he/she might have made...or might have appeared to make...to any President or Senator.
Psst...I’ll let you in on a secret: They aren’t going to overturn Roe or Planned Parenthood v. Casey. SCOTUS never explicitly overturned Lochner v. New York either.
Roe will slowly die the death of 1000 judicial cuts. It will be be chopped away exception by exception, until the exceptions swallow the rule.
My gut tells me he’ll be way closer to Kennedy than Scalia. He clerked for Kennedy.
I hope I’m wrong.
Also I wonder how this nominating experience will impact his rulings. Will he try to make the people who crucified him like him by voting more liberal than he would have, or will he vote more conservative as pay back?
Totally agree with this and I’ve been telling people about this since....
Steve King, Twitter (The Iowa representative, immigration hawk):
“Soon, babies like this little angel will be protected in the womb by law.”
https://twitter.com/SteveKingIA
That’s a Republican congressman who wrote that... but I’ve got to wonder. On one of the news channels, they are saying there are about 6 or 8 cases heading to the Supreme Court on abortion.
Yeah, I am very concerned. We might see something a year or so down the line, maybe after 2020. I don’t think we will see action soon unfortunately. Maybe some piecemeal pro-life decisions.
According to Cliff Kincaid, Collins even received a Planned Parenthood award: http://www.renewamerica.com/columns/kincaid/181008
That’s part of the problem, PP is a big lobby, I told everyone before this, I hope Kav goes through but as said, he’s Kennedy’s replacement and probably just a hair more conservative. We’ve got to hope for the best and pray.
PP is on congressional staffs, all kinds of stuff, but guess what? Unfortunately, we just didn’t have the dadgum votes.
Roe verses Wade was an abomination against states rights. Law was made up by Judicial Fiat in a totally unconstitutional act by judicial activists on the Supreme Court. They cited a right to privacy as the premise. Do I have the right to kill my son in the privacy of my home? This was not bad law but a radical court usurping the legislative branch. That is worse than bad law.
Although I abhor abortion I also realize that the taking of human life as in execution for criminal acts or abortion is up to each and individual Republic of our nation.
Roe verses Wade should be overturned and laws concerning abortion returned to the individual Republic States. Then the final solution is morality and not law.
Oddly each and every one of those babies could have loving homes with childless couples that desperately want them. Abortion is a cruel and selfish act.
Sigh.........the concern trolls needed something else to “speculate” on...I’d wager they also went semi-ballistic when they heard he voted 93% with Garland...without having a clue of what the cases were and whether Garland happened to be right on them...
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