In previous posts, where we vigorously defended now Justice Brett Kavanaugh from unfair and by all the evidence false charges in his confirmation process, several times we indicated that we do not assume he will be a conservative (as much as we hope). Others have presumed and endorsed as such. Our concern existed before Susan Collins’ defense of her vote to support Kavanaugh, which only gave us more concern. Her speech, methodical as it was, laid out a case that should give constitutionalists, textualists, originalists pause in any celebration to say the least.
If what she said is true and her understanding accurate, the implications are that stare decisis (precedent controls) is so important to Kavanagh (virtually part of the Constitution) that it trumps constitutionalism, textualism, originalism . . . and so activist judicial atrocities like Roe v Wade and others may stand on his watch.
Now we do not have a recording of their conversation to determine any nuance emanating from Kavanaugh but Collins comments in support, her being the ardent abortion supporter she is, are seriously worrisome.
It is one thing to say Roe is precedent. Obviously it is. It is another to swear allegiance to all precedent and thus rubberstamp and continue an unconstitutional (properly understood) doctrine. Did he give himself an escape nuance? Interpreting Collins, she says he holds that any chances for exceptions are diminished by time and dependence.
Now we would make the case that the country is not dependent on Roe by any means as it is based on matters not part of the constitution and is constantly under attack by the people and the states. It is not part of the warp and woof of our country and its implications atrocious. It was never settled by a free people.
Our anxiety (we have it with any nominee after the experience of Sueter and Kennedy and Roberts) is somewhat mollified by Allahpundit who we do not always appreciate. He suggests that Collin’s has always looked for a path to approval of Republican nominees in order to be with the team as much as possible.
Heh. Say it with me: Every case is “settled law” until it isn’t. Plessy v. Ferguson was “settled law” (for longer than Roe has been, in fact). When you ask if Roe is settled law, you invite a Clintonian retort: It depends on what the meaning of “is” is.
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Don’t forget either that Kavanaugh is an appellate judge. For the D.C. Circuit on which he presently sits, it is in fact true that Roe and its sequel, Casey, are binding precedent. “Settled law.” For the Supreme Court, though?
Other have expressed serious misgivings about Kavanaugh if Collins is interpreting him correctly”
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We will also remember the anticipation, waiting for the 3:00 announcement of Maine’s Senator Susan Collins. When she finally delivered her speech on the floor of the Senate, neither side could wait for her conclusion. It was high drama. Her remarks were both reasoned and principled. Whatever you may think about Senator Collins, she is her own person. She did what a Senator is expected to do. She asked tough questions and listened carefully to the answers. She was not intimidated by the hate-filled, angry mob. She came to her own conclusions and announced them in calm and measured tones.
It was branded as one of the greatest Senate speeches in recent memory. That may say something about the quality of the oratory of her contemporaries. But, it was a good speech. She used a razor to slice through the disgusting muck that Democrats had thrown at this good man.
The Left predictably and immediately unleashed fire, furry and vitriol. They pledged millions to defeat her in her next election. Traitor! She would be forever banished from the feminist plantation. How could she turn her back on her gender?
The Right just as predictably heaped high praise on her. She had become a genuine statesman (stateswoman?) in their eyes. Carving a special place in history.
What both sides seemed to have missed is what she actually had said leading up to her historic announcement. . . .
We have been repeatedly assured that Brett Kavanaugh is a solid constitutional conservative. . . .
Review for yourself and listen carefully to what the Senior Senator from Maine told us at https://youtu.be/LJRdMh1XhAY
She repeatedly called Judge Kavanaugh a centrist. She reinforced that point with several examples. On over 93% of the cases jointly decided, he and Judge Merrick Garland concurred. Was it a Garland fellow traveler that we had in mind? Lisa Black, who clerked for Justice Ruth Bader Ginsberg and has argued more cases in front of the Supreme Court than any other woman, offered high praise for Kavanaugh. Black is a self-professed staunch defender of Roe and said that he “fits within the mainstream of legal thought.”
Kavanaugh called Marbury v. Madison one of the four greatest Supreme Court rulings. This is the bedrock ruling upon which all judicial activism is built.
Senator Collins reminded us that Kavanaugh had tried to find middle ground on the matter of forcing religious orders to offer contraceptives to employees. Fine. But, he went further. He offered that this was “settled law” citing Griswold v. Connecticut and that the “government had a compelling interest in facilitating access to birth control.”
Compelling interest? Access? Really?
But, it was his reverence to precedents that was most troubling. Collins clearly probed deeply on the 45 year old Roe decision. He told her that past decisions become “part of our legal framework.” He added that precedents are not merely judicial policy, not a goal, but a constitutional tenant. That they were “not to be trimmed, narrowed or overlooked.” When she asked about Planned Parenthood v. Casey, (a decision co-authored by Justice David Souter) he told her that it was “precedent on precedent.”
And then there is this: