Calvin Freiburger

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Pro-life citizens join a rally outside the U.S. Supreme Court on June 30, 2014 as the court releases its decision in Burwell v. Hobby Lobby. American Life League

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The attacks on Brett Kavanaugh prove the folly of settling for ‘stealth’ judicial nominees

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WASHINGTON, D.C., September 25, 2018 (LifeSiteNews) – Given the vile smears thrown at Brett Kavanaugh over the past couple weeks — somehow topping a two-month period that was already packed with lies, hate, stupidity, and general thuggery — it’s easy to forget that Kavanaugh was supposed to be one of the easier judges to confirm on Donald Trump’s short list.

We were told that Amy Comey Barrett, a former Scalia clerk and Notre Dame Faculty for Life member who Democrats had previously subjected to a backfired attack on her Catholic faith, would have provoked a bitter abortion fight and alienated pro-death GOP senators Susan Collins and Lisa Murkowski. As a Federalist Society-approved blank slate on those icky social issues, Kavanaugh was supposed to sidestep such unpleasantness.

Gee, how did that work out?

We don't really know whether Kavanaugh would vote to overturn Roe v. Wade, but the Democrats, media, and abortion lobby are running hard with the narrative that he’s anti-Roe anyway. Oh, and we’re up to as many as eight Republicans who now say they're undecided on Kavanaugh, and want to hear from his accuser before voting.

Appeasing pro-abortion Republicans instead of laying down the law was always a fool’s errand; people who can’t be trusted on first principles will always be fair-weather friends on other battles. And if the damage done by past stealth nominees, from Anthony Kennedy to John Roberts, hasn’t convinced Republicans to confirm jurists’ positions before giving them lifetime power, then this fiasco should prove there’s no political upside to stealth nominees.

To summarize, compromising got us nothing in return. If we’re going to get all of the practical challenges and (assumed) political disadvantages of a pro-life judge no matter what Republicans do, then why can’t we get assurance that the judge really is pro-life?

National Review senior editor Ramesh Ponnuru, author of the essential The Party of Death and countless important pieces on the moral, legal, and political aspects of the abortion debate, weighed in on the question last week, unfortunately endorsing GOP conventional wisdom rather than debunking it.

Ponnuru writes that Kavanaugh’s broader judicial philosophy “nearly precludes thinking that Roe was correctly decided as an original matter” (I agreed with that until I watched his abysmal answers on abortion, Roe, and precedent during his confirmation hearings, which went far beyond “I can’t commit to ruling either way on potential future cases”).

More important, while Ponnuru admits he “can’t guarantee that Kavanaugh would vote to restore legislative authority over abortion policy,” he goes on to defend the standard practice of refusing to give a straight answer on past cases.

First, he explains that “a lot of people, quite rightly, think it would be improper for a judicial nominee to make that kind of commitment in advance of hearing a case.” Curiously, though, he goes on to say there’s “less justification” to “think it would be improper for a nominee to share his thoughts even about previous cases.” Roe is obviously a previous case, and simply stating what numerous pro-abortion legal scholars have freely admitted about its shoddy reasoning would have been entirely appropriate.

Why shouldn’t we verify professed originalists’ qualifications by simply making sure they take the originalist position on specific questions? In what other field would we not expect job interviewers to test applicants’ resumes against examples? Shouldn’t Republicans in particular appreciate this after years of mocking Nancy Pelosi’s infamous line that “we have to pass the bill (Obamacare) so that you can find out what is in it”?

Antonin Scalia didn’t think so. In 2002’s Republican Party of Minnesota v. White, which concerned a state mandate that judicial candidates not divulge their views of specific legal issues, the late justice cast doubt on the premise that judges should be blank slates before assuming power:

A judge’s lack of predisposition regarding the relevant legal issues in a case has never been thought a necessary component of equal justice, and with good reason. For one thing, it is virtually impossible to find a judge who does not have preconceptions about the law (…) Indeed, even if it were possible to select judges who did not have preconceived views on legal issues, it would hardly be desirable to do so. “Proof that a Justice’s mind at the time he joined the Court was a complete tabula rasa in the area of constitutional adjudication would be evidence of lack of qualification, not lack of bias.”

Ponnuru’s other reasons are that such a “commitment about any charged political matter would strike many people as improper, and as evidence of an improper political deal, and thereby make confirmation less likely;” and that pro-Roe polling suggests “(p)romising to overturn it would make confirmation unlikely.”

He proceeds to do some dissecting of those polls and assumptions that’s certainly worth reading, but ultimately both are reasons from political expediency, not principle. Again, the dueling narratives are ensuring that anyone for whom an anti-Roe justice would be a dealbreaker is against Kavanaugh, and GOP leaders’ refusal to rein in pro-abortion Republicans is a much broader problem that must be confronted anyway.

Finally, many (including Trump himself) seem to have forgotten that Trump expressly, repeatedly promised that his judges would oppose Roe. I don’t recall any Republicans calling that improper in 2016; indeed, most were happy to run with that pledge. Yet now we’re told to settle for reading between the lines of nominees’ answers?

That’s not good enough for lifetime seats that wield life-and-death power over millions of children. If the GOP honestly believes it’s wrong to publicly confirm in advance that judicial nominees oppose Roe, then it should stop hiding that belief from voters during elections and let the chips fall where they may. Otherwise, it’s time to stop playing games and start taking seriously the task of evaluating defenders of the Constitution.

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Calvin Freiburger

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Calvin Freiburger is a Wisconsin-based conservative writer and 2011 graduate of Hillsdale College. His commentary and analysis have been featured on NewsReal Blog, Live Action, and various other conservative websites. Before joining LifeSiteNews, he spent two years in Washington, DC, working to build support for the Life at Conception Act with the National Pro-Life Alliance, then worked a year and a half as assistant editor of TheFederalistPapers.org. You can follow him on Twitter @CalFreiburger, and check out his personal website, ConservativeStandards.com.