Category Archives: Courts

The Case Against Brett Kavanaugh

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The writer JD Vance, this time in The Wall Street Journal, has made a strong case for Brett Kavanaugh, a judge on the DC Circuit, being nominated for the Supreme Court.

He is a committed textualist and originalist, one whose time on the bench has revealed a unique ability to apply these principles to legal facts. He deeply believes in the constitutional separation of powers as a means for ensuring governmental accountability and protecting individual liberty.

And

…Judge Kavanaugh’s opinions have been adopted by the Justices 11 times—a record of influence and persuasion that suggests he would be effective on the still-divided high court.

I disagree, though.  Ex-President Barack Obama (D) stacked the DC Circuit with a number of “liberal,” activist judges.  Kavanaugh is more valuable, say I, staying on the DC Circuit, where he can apply those qualities in counterbalancing that liberally stacked court.  He still will have, from there, the influence on the Supreme Court and on our jurisprudence generally that he already has.

There are a number of other judges with the same talents, skills, and understanding of and appreciation for our Constitution, its text, and the text of our laws.  Any of those would make excellent choices for the Supreme Court.

It’s true enough that any of those also would make excellent choices for backfilling Kavanaugh should he depart for the Supremes.  However, that would require a second confirmation hearing and Progressive-Democratic Party time-wasting fight.

The Sanctity of Precedent

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The Progressive-Democrats have their panties in large, tight twists over the possibility of President Donald Trump getting another pick for the Supreme Court.  So much so that now they’re making stuff up in their hysteria.

“Abortion will be illegal in twenty states in 18 months,” tweeted Jeffrey Toobin, the legal pundit, in a classic of cool, even-handed CNN analysis soon after the resignation news.

Senate Minority Leader Chuck Schumer (D, NY):

Whomever the president picks, it is all too likely they’re going to overturn health-care protections and Roe v Wade[.]

And so on.

What these guys are carefully ignoring, though, are some basic fundamentals (excuse the redundancy).

Conservatives are very reluctant to overturn precedent, as the Editorial Board points out. However, the Progressive-Democrats’ insistence on the absolute sanctity precedent—and of Republican Senator Collins’ identical insistence—means that now these worthies have to defend the sanctity of the Dred Scott precedent, and they have to defend Plessy‘s separate-but-equal and explain the inequity of Brown fixing that.

Don’t hold your breath waiting for their explanations. Don’t hold your breath, either, waiting for the NLMSM—CNN, for instance—to ask them for those explanations.

They Would, Indeed

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Commenting on the upcoming nomination for Supreme Court Justice and the Progressive-Democrats’ hysteria over President Donald trump’s choice—long before he makes it—former Arkansas Governor Mike Huckabee said

If he put Moses up for the possibility of being Supreme Court Justice—the ultimate lawgiver, the Ten Commandments—they would still be against it[.]

He’s right.  Recall Senator Dianne Feinstein’s (D, CA) objection to Judge Amy Coney Barrett during the latter’s 7th Appellate Court confirmation hearing:

When you read your speeches, the conclusion one draws is that the dogma lives loudly within you[.]

Never mind that at the outset of that hearing—preceding Feinstein’s slur (of course one’s religious beliefs (or atheism) should live loudly, but Feinstein meant it as a slur)—in response to a question from Senator Chuck Grassley (R, IA), Barrett had said

It’s never appropriate for a judge to impose that judge’s personal convictions, whether they derive from faith or anywhere else, on the law.

Never mind, either, that Barrett and her then-law professor John Garvey had written in a 1998 paper that

in certain circumstances a Catholic judge (like many Quakers, Episcopalians, Presbyterians, Methodists, and the member communions in the National Council of Churches) might be compelled to recuse herself or himself under 28 USC § 455, a federal statute that suggests a federal judge should step aside in the face of conscientious scruples.

The Left and their representative Party are very much anti-Christian, anti-Judaism, anti-religion or even the whiff of any.

Remember this in the fall, and don’t be a stay-at-home.

Playing Politics with the Constitution

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What kind of judge do we want as a replacement for Justice Anthony Kennedy?

Folks are talking about a President Donald Trump nominee being a shoo-in because Republicans have a majority in the Senate, and there’s no filibustering of judicial nominations.  I’m not so sure.

The Left, of course, are crying the End of Times and the end of Roe v Wade, but that’s less a factor than a more pernicious conflict in the offing.

Late Thursday, the president met with a bipartisan group of six senators who will play a pivotal role in selecting Mr Kennedy’s successor because they have deviated from their party on key votes in the past. The lawmakers signaled they want an ideological centrist….

Those Senators included Judiciary Committee Chairman Chuck Grassley (R, IA), Susan Collins (R, ME), Lisa Murkowski (R, AK), Joe Donnelly (D, IN), Heidi Heitkamp (D, ND), and Joe Manchin (D, WV).

Litmus tests and centrism.  Collins and Murkowski look like they’re going to hold out for someone who’ll explicitly protect Roe.  I’d like to see that ruling at least adjusted, but a single, narrow issue should not be a deal maker or breaker.  Litmus tests are out of place here.

Others of that crowd are holding out for a centrist, a middle of the roader, so as not to too badly upset the balance of ideologies on the Supreme Court.  The problem with centrism, though, is that it is committed to finding consensus on a case before the Court and doing so for the sake of consensus not because that would represent the best ruling.

Moreover, consensus-building gives too much opportunity to deviate from the text, to legislate by that deviation from the bench, even to amend the Constitution from the bench.  No.  There can be no compromise here.  The words of the Constitution and of any Constitutional law are fixed, and any alteration of them can only be a political decision, not a judicial one.

Nor is there any place for ideology on the Court or in any court.  The Constitution is written and amended by the People, laws are written and enacted by the political branches of our government.  Our judiciary’s task is to apply the Constitution and laws to particular cases before them.  Ideology has no place in the application; ideology, to the extent it has a role in government, is a political matter alone.

No.  We shouldn’t be playing politics with the Supreme Court picks, naïve as that seems.  The best pick for this Justice, and for all nine Justices in their turn, is someone who will uphold the Constitution and hold laws accountable to the Constitution.  That requires a textualist.  Full stop.

 

Unfortunately, any two of those six Senators are enough to kill a nomination.  Or any one of them, since Senator Jeff Flake (R, AZ) has said he’ll block all judicial nominations until he gets his way on wholly unrelated matters.  Trump and Senate Majority Leader Mitch McConnell (R, KY) have their work cut out for them.  This is not a slam-dunk matter.

A Related Note

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I wrote recently about the Court’s ruling on Janus v AFCME Council 31, which eliminated public service unions’ ability to collect “agency fees” from non union members.

The dissent by Justice Elena Kagan and joined by her three cohorts in the Court’s liberal wing is instructive, and it foreshadows the kind of government we can expect from today’s “liberals,” should they succeed in gaining control of one or both Houses of Congress and then of the White House.

Its decision will have large-scale consequences. Public employee unions will lose a secure source of financial support. State and local governments that thought fair-share provisions furthered their interests will need to find new ways of managing their workforces. Across the country, the relationships of public employees and employers will alter in both predictable and wholly unexpected ways.

Because unions are entitled to OPM for their financial support.  Because governments will be temporarily inconvenienced in their role as employers.  Because employment relationships must never be disrupted or altered.  It’s settled.

And

The majority overthrows a decision entrenched in this Nation’s law—and in its economic life—for over 40 years.

By this logic, Kagan would argue that Plessy v Ferguson, which created the racism of separate-but-equal in our schools (among other places), never should have been rejected by Brown v Board of Education of Topeka, because the latter came 60 years after Plessy had become “entrenched in this Nation’s law—and in its economic life.”

And these [citations omitted]:

And it does so by weaponizing the First Amendment, in a way that unleashes judges, now and in the future, to intervene in economic and regulatory policy.

 

Every one of them will now need to come up with new ways—elaborated in new statutes—to structure relations between government employers and their workers.

 

Still more, thousands of current contracts covering millions of workers provide for agency fees. Usually, this Court recognizes that “[c]onsiderations in favor of stare decisis are at their acme in cases involving property and contract rights.”  It prevents the parties from fulfilling other commitments they have made based on those agreements. It forces the parties—immediately—to renegotiate once-settled terms and create new tradeoffs.

This is an especially dangerous principle of the Left: that the convenience of Government is more important, and should have precedence over, individual liberty.  That forced static-ness is better than the freewheeling interactions of free men and women dealing with each other (and their employers from time to time) according to their own imperatives rather than Government diktat.  (Aside: Kagan also cynically overstated the immediacy of renegotiations.  No such thing is mandated; those contracts will expire on their own and can be renegotiated at that time—as has been the case in Wisconsin.)

And: that it’s somehow wrong that judges should be “unleashed” to uphold our basic, inherent in our very existence, liberties.  It’s not the Conservative wing of the Court that has sought to weaponize the 1st Amendment by insisting that free speech and free association are what Government says they are.

The ruling, with Kagan’s dissent, can be seen here.