Tag Archives: courts

Kavanaugh and Precedents

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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.

Sure enough, in Tuesday’s Senate Judiciary Committee hearing’s opening remarks, it was the End of Days according to the Progressive-Democrats on the Committee.  Kavanaugh represents, you see, everything wrong with President Donald Trump (even though his nomination to office was confirmed a couple of years ago), with Republicans, and with the non-Progressive world.  Women will die (although unborn babies dying doesn’t matter).  People will get horribly sick.  Segregation will return (although it was the Progressive-Democrat Woodrow Wilson who resegregated the Federal government work force that post-Civil War Republicans had integrated, and it’s Progressive-Democrats’ identity politics that actively seeks to segregate Americans politically.)  Violence will rule the streets.

As Kendall pointed out, though,

The judicial doctrine of stare decisis—respect for precedent—is a pillar of the US legal system, and justices generally are reluctant to toss out a ruling without a compelling reason that goes beyond believing it was wrongly decided.

There are two reasons why a precedent should be reversed or overturned by a court, in particular by the Supreme Court.  One, contra reluctant judges (and Kendall?), is if the precedent was wrongly decided: in that case, the precedent should be overturned.  Allowing an error to stand only allows injustice from the error to stand, and the longer the delay in correcting the error, the greater the injustice.  It’s never too late to correct an error.

The other reason is if the circumstances of the precedent no longer apply.  An example of this is the Supreme Court’s ruling of a lack of presumption of privacy in its upholding warrantless wiretapping of a wireless telephone connected to its homeowner’s base station by a then-unencrypted radio signal.  The public has gotten quite a bit more sophisticated about privacy and quite a bit more concerned with preserving it in all venues today, and so the circumstance of that precedent no longer applies—it should be reversed.

In either case, though, it’s not a straightforward affair to come to the recognition of error or of inapplicability.  That depends on the particular facts of a case and on what the applicable law actually says.  It’s unreasonable to expect Judge Kavanaugh to be able to comment substantively on whether he’d use a case to overturn Roe v Wade, for instance, or any of the other cases the Progressive-Democrats have their panties twisted around: he hasn’t seen those cases, since they haven’t come before him.

It’s also unreasonable to say what he might do, as Justice Ruth Bader Ginsburg said at her confirmation hearing.  To speculate in advance would be to prejudge those cases, and no honest judge can do that.

The Progressive-Democrats know that, also.

Flipping Witnesses

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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:

Trump’s idea would effectively demolish one of the basic and valuable tools of criminal law enforcement in the US.

It’s dangerous for our prosecutors to so blatantly and avidly rely on their ability to do the testifying by using the mouths of “witnesses” they’ve either browbeaten into testifying in a certain way or who’ve sold their testimony to the prosecutors like Thursday night hookers.

If the prosecutors can’t make their case without such witnesses, they don’t have a case to make.

No Need to Waste the Time

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…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

The White House has said it is willing to produce some 80,000 document pages and 200,000 email pages from Mr Kavanaugh’s time in the White House counsel’s office.

The WSJ was too mild, though.  There’s no need for the Senate to go along with the Progressive-Democrats’ hysterical obstructionism.  Grassley should accept the White House’s offer—it’s already larger than what the Progressive-Democrats demanded of then-Supreme Court nominee Neil Gorsuch—and then he should hold the hearings, regardless of Feinstein’s attempts to stall, and hold the committee vote.  After that, Senate Majority Leader Mitch McConnell (R, KY) should hold the floor vote on Kavanaugh while ignoring Schumer’s attempts to stall.

The Senate has actual work to do; it has no time for the Progressive-Democrats’ childish games or temper tantrums.

Reactionary Ideologue

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President Donald Trump has nominated Brett Kavanaugh, of the DC Circuit, to the Supreme Court, and “within seconds” Democracy for America called him a reactionary ideologue.

DfA, without correction from the Progressive-Democrats of Congress, or anyone else on the left, also has foretold Kavanaugh’s confirmation would

directly lead to the deaths of countless women with the dismantling of abortion rights.

Even taking the manufactured hysteria seriously, it’s instructive here as an aside (of no small size) to consider that the Left worries about the risks to grown, adult women who make the conscious choice to run a risk, but they care not a red sou for the deaths of countless babies who cannot speak for themselves and for whom the Left insists no one should so speak.

That the Progressive-Democrats’ opposition to the Kavanaugh nomination has nothing to do with principled disagreement with how the man might adjudicate cases and everything to do with naked politics is further illustrated by a fund-raising email House Minority Leader Nancy Pelosi (D, CA) sent Monday.  In it she wrote that [emphasis added]

she is “determined to avenge President Obama if it’s the last thing I do” by preemptively opposing President Trump’s Supreme Court nominee….

All of this is confirmation of the Progressive-Democrats’ view of the Constitution.  That core of our nationhood is just something to be modified at will by unelected judges—so long as they’re properly selected by Progressive-Democrats.  It’s Justice Ruth Bader Ginsburg’s “living” constitution.

Or, as a journolist put it more bluntly,

[The constitution] has no binding power on anything.  …the text is confusing because it was written more than a hundred years ago….

Never mind that there’s nothing at all reactionary in a judge upholding the Constitution.  That’s what his oath of office enjoins him to do.  On the other hand, a judge modifying the Constitution to fit a personal view of social justice is rank judicial activism—and a violation of his oath of office.

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.