WASHINGTON, D.C., October 9, 2018 (LifeSiteNews) – Pro-lifers are right to celebrate the failure of the smear campaign against Brett Kavanaugh. We wouldn’t have gotten a better nominee if President Trump had withdrawn him, and surrender would have not only demoralized the conservative base but taught leftists they can get away with anything.
That being said, we can’t let our euphoria blind us to the fact that we don’t really know if our newest Supreme Court justice is the automatic anti-Roe vote the president promised us, and Susan Collins’ make-or-break speech Friday was actually a damning indictment of how little vetting we did before appointing him to lifetime power.
Yes, she defied the mob. Yes, she did a fair job of detailing the accusers’ credibility problems. But are we really going to downplay or ignore her ringing endorsements of Roe and Obergefell – or worse, her confidence that Kavanaugh agrees?
Judge Kavanaugh described the Obergefell decision, which legalized same-gender marriages, as an important landmark precedent. He also cited Justice Kennedy’s recent Masterpiece Cakeshop opinion for the court’s majority stating that “the days of treating gay and lesbian Americans, or gay and lesbian couples as second-class citizens who are inferior in dignity and worth are over in the Supreme Court.”
Here Collins is simply quoting Kavanaugh’s confirmation hearing testimony. True, he refused to call Obergefell rightly decided, and may have just been trying to get Kamala Harris off his back. But shouldn’t any degree of praise for an emotion-driven, precedent-upending legal farce (particularly coming from a professed fan of precedent) warrant further questioning?
As Robert A. J. Gagnon said Saturday, the “best that we can hope for is that Kavanaugh was intentionally misleading Democratic Senators; but then the degree of dissembling wouldn't speak well of him.”
To my knowledge, Judge Kavanaugh is the first Supreme Court nominee to express the view that precedent is not merely a practice and tradition, but rooted in Article 3 of our Constitution itself. He believes that precedent is not just a judicial policy, it is constitutionally dictated to pay attention and pay heed to rules of precedent. In other words, precedent isn’t a goal or an aspiration. It is a constitutional tenet that has to be followed except in the most extraordinary circumstances.
Collins is accurately summarizing Kavanaugh’s testimony last month. There’s some truth to this – Alexander Hamilton saw precedent as keeping judges from exercising “arbitrary discretion” and helping “define and point out their duty” – but it’s not at all obvious that precedent “comes right from” Article III’s text. More importantly, these effects are only valuable to the extent they’re upholding the Constitution rather than subverting it. And how “extraordinary” do circumstances have to be to trump precedent?
He said decisions become part of our legal framework with the passage of time and that honoring precedent is essential to maintaining public confidence […] in his testimony, he noted repeatedly that Roe had been upheld by Planned Parenthood vs. Casey, describing it as a precedent. When I asked him would it be sufficient to overturn a long-established precedent if five current justices believed that it was wrongly decided, he emphatically said “no.”
If Kavanaugh really said that (a big if, granted), he should have been canned on the spot. Precedent can potentially trump the Constitution itself? In a job all about upholding the Constitution? As Justice Thomas was paraphrased in a 2007 interview, “If the Court has deviated from the text of the Constitution, subsequent cases adhering to the precedent only magnify the error.”
This is also why the strongest piece of pro-Kavanaugh evidence, his 2017 speech discussing Chief Justice Rehnquist’s critique of Roe, doesn’t necessarily settle things. If Collins is right, Kavanaugh might believe Roe was wrongly decided but deserves to stand anyway due to other considerations. He might overturn it if he thinks Roe is “grievously wrong” like Plessy v. Ferguson or Dred Scott v. Sanford, but “might” is the point: we don’t know, and now it’s too late.
Opponents frequently cite then-candidate Donald Trump’s campaign pledge to nominate only judges who would overturn Roe. The Republican platform for all presidential campaigns has included this pledge since at least 1980. During this time Republican presidents have appointed Justices O’Connor, Souter and Kennedy to the Supreme Court. These are the very three Republican president appointed justices who authored the Casey decision which reaffirmed Roe.
It is astonishing just how little attention this passage has gotten. Collins is essentially saying, “don’t worry about it, my party has been lying to those pro-life rubes for decades.” It’s not entirely true, of course; Republicans also gave us Rehnquist, Scalia, Thomas, and Alito. But one would assume somebody in the GOP would have a problem with one of their own bragging about the gulf between her party’s words and deeds.
Settling for stealth nominees would be one thing if we were simultaneously working on reducing the judiciary’s power or alternative ways to tear down Roe. But for years, our leaders have put all their eggs in the Supreme Court’s basket. How can the same people who demanded we take this path settle for anything less than absolute certainty we’re going the right way?
As undeserved as so much of the fawning praise for Collins is, we have to give her credit for one thing: she seems to have put more effort into investigating Kavanaugh’s views than Ted Cruz, Mike Lee, or Ben Sasse did. Now, all we can do is pray our new Supreme Court justice is who so many pro-lifers think he is – and that we don’t have to learn the hard way to take the next vacancy more seriously.
