Rethinking Supreme Court Nominee Kavanaugh: Easy to React, Harder to UnReact

In Kavanaugh, Staunch Catholic, Trump’s Supreme Court Nominee: Roe v Wade Spotlight, I blasted Trump’s selection.

Reader “hmk” accurately commented “Just because someone’s personal beliefs are anti-abortion you think the first thing they are going to do is reverse roe v wade and spread hysteria about it.”

Bingo.

As much as I hate admitting mistakes, that comment gets to the heart of the matter.

Via email, from another reader, I received a link to this Wikipedia assessment of Kavanaugh’s Positions.

Abortion

Kavanaugh has stated that he considers Roe v. Wade binding under the principle of stare decisis and would seek to uphold it, but has also ruled in favor of some restrictions for abortion.

In May 2006, Kavanaugh stated he “would follow Roe v. Wade faithfully and fully” and that the issue of the legality of abortion has already “been decided by the Supreme Court”. During the hearing, he stated that a right to an abortion has been found “many times”, citing Planned Parenthood v. Casey.

In October 2017, Kavanaugh joined an unsigned divided panel opinion which found that the Office of Refugee Resettlement could prevent an unaccompanied minor in its custody from obtaining an abortion. Days later, the en banc D.C. Circuit reversed that judgment, with Kavanaugh now dissenting. The D.C. Circuit’s opinion was then itself vacated by the U.S. Supreme Court in Garza v. Hargan (2018).

Email from a Lawyer Friend

I received this email from a friend that I highly respect. He knows Kavanaugh personally.

I need to leave some details out, but here is the key portion of the email.

Mish,

Brett Kavanaugh is not a bad guy. You would like him.

Roberts, like Garland and I, served on the Harvard Law Review about the same time. We were all part of a loose group of folks who admired John Harlan, a Supreme Court justice who emphasized the Court’s need to be restrained because, in our view, in a democracy judges are referees, not players.

Courts should seldom intervene – they should let the players play the game – and intervene only when fundamental rules are broken.

One of the rules that keep Courts as referees is stare decisis – the principle that, even if it’s a bad rule, you need to follow it because changing it on the fly makes you a player. As you can see, people with different political views adhere to the principles. It is a procedural, “legal” principle. Other lawyers are quicker to do justice, a defensible position. But one man’s justice is another man’s injustice: judges become players.

Stare Decisis

It is precisely stare decisis that reader “hmk” referred to, without mentioning it by name.

Liberal Case for Kavanaugh

In an op-ed for the New York Times, Akhil Reed Amar, a professor at Yale Law School makes a Liberal’s Case for Brett Kavanaugh.

The nomination of Judge Brett Kavanaugh to be the next Supreme Court justice is President Trump’s finest hour, his classiest move. Last week the president promised to select “someone with impeccable credentials, great intellect, unbiased judgment, and deep reverence for the laws and Constitution of the United States.” In picking Judge Kavanaugh, he has done just that.

In 2016, I strongly supported Hillary Clinton for president as well as President Barack Obama’s nominee for the Supreme Court, Judge Merrick Garland. But today, with the exception of the current justices and Judge Garland, it is hard to name anyone with judicial credentials as strong as those of Judge Kavanaugh. He sits on the United States Court of Appeals for the District of Columbia Circuit (the most influential circuit court) and commands wide and deep respect among scholars, lawyers and jurists.

Although Democrats are still fuming about Judge Garland’s failed nomination, the hard truth is that they control neither the presidency nor the Senate; they have limited options. Still, they could try to sour the hearings by attacking Judge Kavanaugh and looking to complicate the proceedings whenever possible.

This would be a mistake. Judge Kavanaugh is, again, a superb nominee. So I propose that the Democrats offer the following compromise: Each Senate Democrat will pledge either to vote yes for Judge Kavanaugh’s confirmation — or, if voting no, to first publicly name at least two clearly better candidates whom a Republican president might realistically have nominated instead (not an easy task). In exchange for this act of good will, Democrats will insist that Judge Kavanaugh answer all fair questions at his confirmation hearing.

The compromise I’m proposing would depart from recent confirmation practice. But the current confirmation process is badly broken, alternating between rubber stamps and witch hunts. My proposal would enable each constitutional actor to once again play its proper constitutional role: The Senate could become a venue for serious constitutional conversation, and the nominee could demonstrate his or her consummate legal skill. And equally important: Judge Kavanaugh could be confirmed with the ninety-something Senate votes he deserves, rather than the fiftysomething votes he is likely to get.

What’s the Alternative?

It’s possible my initial judgment was correct. But what is the alternative?

When Trump nominated Neil Gorsuch, I commented that the Democrats should accept him wholeheartedly because any other choice would likely be worse for them.

The same applies here.

Religiously-speaking, I am not going to change anyone’s mind, nor will anyone change mine.

Years of indoctrination are difficult to overcome, but I managed. I went to Catholic schools for 12 years.

Best Choice Possible

If the Democrats manage to sink Kavanaugh, would Trump’s next selection be any better?

There is about a zero percent chance of that likelihood.

Conclusion: Democrats ought to rally around this choice and in retrospect so should have I.

Easy to React, Harder to UnReact

I have a simple policy, admit mistakes or someone will admit them for you in a more damaging way.

Kavanaugh is a highly respected legal mind and his prior comments give pro-choice advocates a decent chance.

That is absolutely the best anyone could have expected from Trump.

Mike “Mish” Shedlock

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