A Newly Conservative Court?

Jess Bravin, writing in The Wall Street Journal, thought so.

When Justice Brett Kavanaugh takes the bench Tuesday, it will mark the culmination of the Republican Party’s 50-year drive to cement a conservative majority on the Supreme Court.

At the least, he argued,

[A] five-justice majority more sensitive to regulatory and litigation costs on business should tip more outcomes toward industry and employers, imposing higher bars for workers, consumers and environmentalists, according to legal experts who have studied the court and Justice Kavanaugh’s jurisprudence. At the same time, the new majority is likely to show more sympathy for social conservatives resisting the encroachment of gay rights and access to contraceptives, as well as greater tolerance for state initiatives to curb the availability of abortion.

Partisanship

Chris Wallace interviewed Senator Ben Cardin (D, MD) on his Fox News Sunday program last Sunday.

Here are some of the claims Cardin made.

The change that Senator McConnell made to the rules on the Supreme Court really caused us to be much more partisan in this[.]

And

I don’t believe that Justice Kavanaugh’s in the mainstream of judicial thought.

And

Kavanaugh’s confirmation puts at risk “the progress we’ve made on health care issues, on women’s Constitutional rights, and on protecting the Mueller investigation.”

Not quite, although this is America, and Cardin is entitled [sic] to his spin.

The Supreme Court

As I write this (Saturday morning), Supreme Court Justice nominee Brett Kavanaugh has not been confirmed; although, that seems more likely than I had thought Friday morning before the cloture vote.  Nevertheless, here’s why we need another textualist Justice on the Court—from the words of another Supreme Court Justice.

Associate Supreme Court Justice Elena Kagan said Friday she fears the high court may lack a justice going forward who would serve as a swing-vote on cases….

And

Kagan said at a conference for women at Princeton University that over the past three decades…there was a figure on the bench “who found the center or people couldn’t predict in that sort of way.”

A Response

Recall Senator Richard Blumenthal’s (D, CT) sly innuendo about Supreme Court Justice nominee Brett Kavanaugh during last Thursday’s (has it been only a week?) Senate Judiciary Committee hearing to receive testimony from Dr Christine Blasey Ford and Judge Kavanaugh:

As a federal judge, you’re aware of the jury instruction falsus in uno, falsus in omnibus [false in one thing, false in everything], are you not? You’re aware of that jury instruction.

Where Blumenthal was being legally pedantic, Victor Davis Hanson has an idea of an entirely appropriate response by Judge Kavanaugh, a broader, literary one, from Horace:

An FBI Investigation

Senator Jeff Flake (R, AZ) sold his Supreme Court Justice nominee Brett Kavanaugh confirmation floor vote for a week-long FBI investigation into Dr Christine Blasey Ford’s accusation against Kavanaugh.  Ostensibly this was a deal he made with his BFF, Senator Chris Coons (D, DE), in return for the Senate’s Progressive-Democrats dropping their complaints that six prior FBI background checks of Kavanaugh didn’t turn up enough dirt to suit them.

Unitary Executive

Senator Ben Sasse (R, NE), a member of the Senate Judiciary Committee that held hearings last week on Judge Brett Kavanaugh’s nomination to the Supreme Court, had an op-ed in Thursday’s Wall Street Journal that opened with this.

Brett Kavanaugh has been accused of hating women, hating children, hating clean air, wanting dirty water. He’s been declared an existential threat to the nation.

He’s also accused of favoring a unitary Executive and thereby ceding dangerously broad power to the President.

Connections

One in particular stands out for me: that between Senator Amy Klobuchar (D, MN) and the truth.  Charles Hurt, in the Washington Times, has the sordid story.

[Klobuchar] claims to have read 148,000 documents that reveal Judge Kavanaugh to be so heinous as to be unfit for the high court.

OK, let’s say Ms. Klobuchar spent two minutes reading each document. That would be 296,000 minutes—or 205 days—reading these documents. Which is pretty remarkable considering Judge Kavanaugh was nominated 55 days ago.

Kavanaugh and Precedents

Brent Kendall, in a piece in Monday’s The Wall Street Journal, wrote about the importance of judicial precedence and how willing Supreme Court Justice nominee Judge Brett Kavanaugh would be to overturn them.

Liberals warn that key rulings on abortion, affirmative action, and gay rights could be weakened or reversed by a court that leans further to the right. Many conservatives, on the other hand, hope those precedents will be limited by future rulings and eventually crumble, even if Judge Kavanaugh moves carefully rather than tearing through established doctrine.

Flipping Witnesses

President Donald Trump decries it.  So have I in writing about the Manafort case and the credibility of Mueller’s prosecutors’ witnesses.

What’s interesting to me and saddening, and what’s dangerous to our system of justice—which includes justice for the accused as well as the victim—is prosecutors’ response to Trump’s decrial.

Peter Zeidenberg, a former federal prosecutor, said that Mr Trump’s comments amount to “an absolutely outrageous statement and to any prosecutor would just be shocking to hear.”

“It’s hard to overstate how fundamental” to prosecutions cooperating witnesses are, Mr Zeidenberg said.

And Stephen Gillers, a New York University School of Law professor:

No Need to Waste the Time

…arguing the matter.  In an opinion piece, The Wall Street Journal Editorial Board called out “Tricky Dick Schumer” (their appellation) for his stalling effort centered on his demand for millions of pages of documents from Judge Brett Kavanaugh’s past pursuant to evaluating Kavanaugh’s nomination to the Supreme Court.  Schumer has said he’ll try to block any discussion of Kavanaugh’s fitness until he gets those millions of docs.  The WSJ also noted that

Judiciary Chairman Chuck Grassley [R, IA] is trying to work out a document deal with ranking Democrat Dianne Feinstein.

This against the backdrop of