8/30/18, by John Frary
U.S. Court of Appeals Judge Brett Kavanaugh is President Donald Trump’s nominee to replace retired Justice Anthony Kennedy on America’s highest court. Kavanaugh is scheduled to begin his Senate confirmation hearings on Tuesday, September 4th. Former Secretary of State, Condoleezza Rice and Ohio Sen. Rob Portman will introduce Kavanaugh.
The New York Times editors sprang into action, as soon as Justice Anthony Kennedy’s retirement was announced, denouncing his replacement as a “reactionary, ultraconservative, right-wing ideologue.” It didn’t matter that President Donald Trump hadn’t nominated anyone at the time. The editors knew what to expect because the Oval Office Orge has been consistently nominating from a list already made public. On July 6th, the editors made the real issue clear by pointing out that “the President will lock in a 5-to-4 conservative majority, shifting the court solidly to the right for a generation.”
The issue is power: who gets it; who keeps it; how will it be used.
The Maine Common Good Coalition, in its simple rustic way, made the Progressives’ concerns still clearer with this declaration: “A Supreme Court Justice is EVERYTHING that affects our and our children’s lives and their futures. From the Environment, to Climate Justice/Climate Change action, to Women’s Rights, to Civil Rights to Workers Rights, to Equality Rights, to Immigrant Rights, and more, there is little a Supreme Court Justice does not impact in an American citizen’s life.”
Do they have a problem with a tiny oligarchy exercising such vast power over all our lives? There’s no hint of it. Their concern, we can assume, is about this power falling into the wrong hands.
This declaration was of the Coalition’s proclamation of an August 26th, Bangor rally intended to influence Senator Susan Collins. In July, she had declared that “A candidate…who would overturn Roe v Wade would not be acceptable to me. That would indicate an activist agenda that I don’t want to see a judge have. And that would indicate to me a failure to respect precedent.”
We note that these three careful sentences avoid debates about Constitutional interpretation. They center on the stare decisis principle derived from the Common Law. The abortion issue is divisive and professional Moderates like Collins always avoid putting divisive issues front and center. She mutes the abortion issue and centers on a principle of jurisprudence about which we can all agree; precedent must be respected.
Our Susan’s “line in the sand” declaration in defense of Roe v. Wade suggested she might vote against Brett Kavanaugh, but the Left-Lurchers are not comfortable with her. Brian Fallon, a CNN commentator, who once served as Hillary Clinton’s spokesman, tweeted out links to the Web site StopKavanaugh.com and warned that “She is perfectly happy to let herself be suckered based on phony assurances about ‘precedent.”
The senator voted to confirm Gorsuch, Trump’s other nominee, and never apologized. The Left-Lurchers have not forgotten and show no inclination to forgive. She worries them, and they resent her for making them worry. They show no interest in her theories of Constitutional interpretation — if she has any. They know the results they want and have no interest in the process by which they are determined.
A #HangersForCollins campaign started up immediately in the hope of pressuring her into a vote against any Trump nominee. The tweeters shared screen grabs of online shopping carts with coat hangers to show they were purchasing the items with the intent of mailing it to Collins. The tweeter-activists explained that they are sending coat-hangers to her office of as a symbolic message about the legacy of anti-abortion policies and court decisions.
Their real objective is intimidation. I called the Collins Bangor office to discover that they were well-supplied with free coat-hangers, but the woman with whom I spoke did not sound intimidated.
The Left-Lurchers grew more anxious on July 10th. “Certainly, when you look at the credentials that Judge Kavanaugh brings to the job,” Collins said, “it will be very difficult for anyone to argue that he’s not qualified for the job. He’s clearly qualified for the job, but there are other issues involving judicial temperament and his … judicial philosophy that also will play into my decision.”
This careful observation did not initiate a debate about Kavanaugh’s judicial philosophy. And nobody is really challenging his professional credentials. The primary question is whether a conservative (or “reactionary, ultraconservative, right-wing ideologue” as the New York Times prefers) should be allowed on the court.
The Secondary question is whether he can be counted on to protect abortion rights. NARAL and Planned Parenthood are calling on the Senate to demand a new “personal liberty standard” of forcing Supreme Court nominees to affirm the Roe v. Wade decision.
Senate Minority Leader Chuck Schumer (D-NY) has agreed with the abortion groups’ standard, arguing that nominees simply saying they would respect Roe as precedent was “no longer enough.” On August 21st, Sen. Schumer discussed a disappointing meeting with the nominee. “I asked him if he agreed that Roe v. Wade and Casey v. Planned Parenthood were correctly decided,” Schumer complained. “He would not say yes.” This non-response, Schumer warned, “should send shivers down the spine of any American who believes in reproductive freedom for women.”
Schumer has no interest in how the nominee will interpret the constitution. He is interested in whether he will arrive at a conclusion he finds acceptable.
Senator Collins had her personal interview with Kavanaugh before Schumer announced that she was satisfied. He accepted that Roe v. Wade as settled law out of respect for the state decision principle. Schumer, Planned Parenthood, NARAL demand something more. They want a declaration that the decision was holy writ from the moment Justice Harry Blackmun signed it.
Prof. John Hart Ely, one of Yale’s most quoted law professors in his day, did not agree.“Roe is bad because it is bad constitutional law,” Ely wrote, “or rather because it is not constitutional law and gives almost no sense of an obligation to try to be.” Professor Ely, who favored abortion rights, could not have gotten past Chuck Schumer if nominated for a federal court.
Edward Lazarus, a former law clerk to Justice Harry Blackmun, had this to say about the quality of his interpretive reasoning: “As a matter of constitutional interpretation and judicial method, Roe borders on the indefensible. I say this as someone utterly committed to the right to choose, as someone who believes such a right has grounding elsewhere in the Constitution instead of where Roe placed it, and as someone who loved Roe’s author like a grandfather. Justice Blackmun’s opinion provides essentially no reasoning in support of its holding. And in the almost 30 years since Roe’s announcement, no one has produced a convincing defense of Roe on its own terms.”
These are not isolated judgments. They are shared by other legal liberal jurists who support abortion rights but insist on respect for the Constitution. When Schumer, et al. insist on declarations of allegiance to Roe v. Wade they are insisting on declarations of allegiance to its ruling — not its reasoning. They want Kavanaugh to pretend that he thinks Harry Blackmun was a brilliant legal mind.
John Frary is a retired college professor of 32 years, a well-known conservative columnist and activist, a former Maine congressional candidate and a contributor for Maine First Media.
Since taking office as a Senator in 1997, Sen. Susan Collins has voted for every SCOTUS candidate brought before her. The list includes two nominees from George W. Bush (John Roberts and Samuel Alito). But Sen. Clueless Collins also voted in favor of both of Barack Obama’s choices (Sonia Sotomayor and Elena Kagan). In addition to backing both Obama nominees, Maine’s senior senator also supported allowing a vote on Obama’s pick to replace the departed Justice Antonin Scalia (Merrick Garland). In 2017, Sen. Collins did vote to confirm President Trump’s first SCOTUS pick (Neil Gorsuch).