Rethinking Supreme Court Nominee Kavanaugh: Easy to React, Harder to UnReact

Mish

I blasted Trump for nominating Brett Kavanaugh. That was a mistake.

In Kavanaugh, Staunch Catholic, Trump's Supreme Court Nominee: Roe v Wade Spotlight, I blasted Trump's selection.

Reader "hmk" accurately commented "Just because someone's personal beliefs are anti-abortion you think the first thing they are going to do is reverse roe v wade and spread hysteria about it."

Bingo.

As much as I hate admitting mistakes, that comment gets to the heart of the matter.

Via email, from another reader, I received a link to this Wikipedia assessment of Kavanaugh's Positions.

Abortion

Kavanaugh has stated that he considers Roe v. Wade binding under the principle of stare decisis and would seek to uphold it, but has also ruled in favor of some restrictions for abortion.

In May 2006, Kavanaugh stated he "would follow Roe v. Wade faithfully and fully" and that the issue of the legality of abortion has already "been decided by the Supreme Court". During the hearing, he stated that a right to an abortion has been found "many times", citing Planned Parenthood v. Casey.

In October 2017, Kavanaugh joined an unsigned divided panel opinion which found that the Office of Refugee Resettlement could prevent an unaccompanied minor in its custody from obtaining an abortion. Days later, the en banc D.C. Circuit reversed that judgment, with Kavanaugh now dissenting. The D.C. Circuit's opinion was then itself vacated by the U.S. Supreme Court in Garza v. Hargan (2018).

Email from a Lawyer Friend

I received this email from a friend that I highly respect. He knows Kavanaugh personally.

I need to leave some details out, but here is the key portion of the email.

Mish,

Brett Kavanaugh is not a bad guy. You would like him.

Roberts, like Garland and I, served on the Harvard Law Review about the same time. We were all part of a loose group of folks who admired John Harlan, a Supreme Court justice who emphasized the Court’s need to be restrained because, in our view, in a democracy judges are referees, not players.

Courts should seldom intervene – they should let the players play the game – and intervene only when fundamental rules are broken.

One of the rules that keep Courts as referees is stare decisis – the principle that, even if it’s a bad rule, you need to follow it because changing it on the fly makes you a player. As you can see, people with different political views adhere to the principles. It is a procedural, “legal” principle. Other lawyers are quicker to do justice, a defensible position. But one man’s justice is another man’s injustice: judges become players.

Stare Decisis

It is precisely stare decisis that reader "hmk" referred to, without mentioning it by name.

Liberal Case for Kavanaugh

In an op-ed for the New York Times, Akhil Reed Amar, a professor at Yale Law School makes a Liberal’s Case for Brett Kavanaugh.

The nomination of Judge Brett Kavanaugh to be the next Supreme Court justice is President Trump’s finest hour, his classiest move. Last week the president promised to select “someone with impeccable credentials, great intellect, unbiased judgment, and deep reverence for the laws and Constitution of the United States.” In picking Judge Kavanaugh, he has done just that.

In 2016, I strongly supported Hillary Clinton for president as well as President Barack Obama’s nominee for the Supreme Court, Judge Merrick Garland. But today, with the exception of the current justices and Judge Garland, it is hard to name anyone with judicial credentials as strong as those of Judge Kavanaugh. He sits on the United States Court of Appeals for the District of Columbia Circuit (the most influential circuit court) and commands wide and deep respect among scholars, lawyers and jurists.

Although Democrats are still fuming about Judge Garland’s failed nomination, the hard truth is that they control neither the presidency nor the Senate; they have limited options. Still, they could try to sour the hearings by attacking Judge Kavanaugh and looking to complicate the proceedings whenever possible.

This would be a mistake. Judge Kavanaugh is, again, a superb nominee. So I propose that the Democrats offer the following compromise: Each Senate Democrat will pledge either to vote yes for Judge Kavanaugh’s confirmation — or, if voting no, to first publicly name at least two clearly better candidates whom a Republican president might realistically have nominated instead (not an easy task). In exchange for this act of good will, Democrats will insist that Judge Kavanaugh answer all fair questions at his confirmation hearing.

The compromise I’m proposing would depart from recent confirmation practice. But the current confirmation process is badly broken, alternating between rubber stamps and witch hunts. My proposal would enable each constitutional actor to once again play its proper constitutional role: The Senate could become a venue for serious constitutional conversation, and the nominee could demonstrate his or her consummate legal skill. And equally important: Judge Kavanaugh could be confirmed with the ninety-something Senate votes he deserves, rather than the fiftysomething votes he is likely to get.

What's the Alternative?

It's possible my initial judgment was correct. But what is the alternative?

When Trump nominated Neil Gorsuch, I commented that the Democrats should accept him wholeheartedly because any other choice would likely be worse for them.

The same applies here.

Religiously-speaking, I am not going to change anyone's mind, nor will anyone change mine.

Years of indoctrination are difficult to overcome, but I managed. I went to Catholic schools for 12 years.

Best Choice Possible

If the Democrats manage to sink Kavanaugh, would Trump's next selection be any better?

There is about a zero percent chance of that likelihood.

Conclusion: Democrats ought to rally around this choice and in retrospect so should have I.

Easy to React, Harder to UnReact

I have a simple policy, admit mistakes or someone will admit them for you in a more damaging way.

Kavanaugh is a highly respected legal mind and his prior comments give pro-choice advocates a decent chance.

That is absolutely the best anyone could have expected from Trump.

Mike "Mish" Shedlock

Comments (22)
No. 1-22
Realist4ever
Realist4ever

Glad to see you realize your mistake. Your friend is a very wise person.

Avi
Avi

Mish , It is OK to admit you are wrong...that what BIAS means, and SCOTUS picks are their to make sure that our Judicial process does not reflect the BIAS when taking important decisions for the nation...remember the probability of any decision going either way is 50%-50% for each of the SC judges.

Our mind plays a "Gotcha game", it tends to take the "know inputs" and the "know outcomes" and attaches a probability and a confidence interval and tends to take a position...which sometimes are wrong (means sometime right).

So, chill out accept you were wrong and move on.

Avi
Avi

..I am worried of the rest of them who are ideological and hard for them to accept it. (I am talking on both side of spectrum)

Mike Mish Shedlock
Mike Mish Shedlock

Editor

I would like to list his name and praise him, but I cannot. Someone clever could figure it out. If you do, please don't post it.

Avi
Avi

You answered you own question and "fears".

tz1
tz1

I hope the Democrats sink Kavanaugh so that we get 61GOP senators that will bring on not quite the Handmaid's tale. Whatever your opinion on abortion, gay marriage, etc. if you wish to have a bunch of black robed nazgul oligiarch rule and make law ABOVE the constitution, you deserve everything you get. The way it was designed was ugly, hard, and capricous DEMOCRACY through CONGRESS. Not Prez executive orders or SCOTUS diktaks. If you want something, fight for it at the ballot box, not packing the courts. The Frankencourt was created by the left. You should thank God that Trump is merely neutering it instead of packing it with rabid rightists.

pi314
pi314

I never understood the hysteria over RvW. Do you expect the court to rule 9-0 on controversial issues (abortion, LGBTQ, religion, environment, affirmative action, immigration, etc)? Even the RvW ruling had 2 dissenters. If every interest group has its own litmus test, there will never be a 'qualified' supreme court nominee!

Avi
Avi

I love it when the other party cries foul when the "Stuff the Court " their own kind, wow What goes around comes around...

Avi
Avi

Wish these SCOTUS picks never DIE...

baldski
baldski

The problem I have with Kavanaugh is that he never met a corporation he doesn't like.

shred1
shred1

Kavanaugh is a deep stater who has no intention of going against abortion. He's not what the people who voted for Trump want. Period. Murdering babies is not conservative.

Kinuachdrach
Kinuachdrach

Congratulations, Mish. You are very perceptive on many topics, but you tend to lose the plot when President Trump's name is associated with anything. It is good to prove to yourself that you can revise your assessment.

That said, Roe vs Wade was an example of what Justices should never do --- and that is fabricate the law. Because the Justices broke their oath to uphold the Constitution (which is silent on abortion) and pushed something through undemocratically, the topic is still controversial decades later. Bad!! Legislatures should make law, not the Supreme Court Justices.

douglascarey
douglascarey

Plus nobody cares about your views on abortion anyway.

Asleep
Asleep

Good follow up and a work in progress. Everyone is acting as if Kavanaugh will cease control of the Court. I seriously doubt that Chief Justice Roberts will relinquish his role. Unlike the legislative and executive branches Roberts has no interest in losing civility amongst the justices. A recent Arkansas court case that involved medicated abortion prohibition was denied certiorari by the Court. I am not an expert, but this may be a sign the liberal justices have no appetite for an attack on Roe. Again Roberts may allow this to occur in order to maintain the court’s equanimity.

Scag_man
Scag_man

It is rare that a writer admits mistakes with headlines equally as large as those used in the original story. Mish earns deep respect as an intellectually honest writer with integrity that is matched by few in today's press. Whether you agree with his original position, or his revised, you cannot argue that he stands out from much of the scurrilous press that dominates the news nowadays.

Ambrose_Bierce
Ambrose_Bierce

He can stack the court at any rate, might as well check into the concentration camp now and get a good bunk

SleemoG
SleemoG

Changing one's opinion is not the same as admitting to a mistake. There are no normative opinions.

Blacklisted
Blacklisted

Nobody is perfect -

The Disturbing Reasoning of Judge Brett Kavanaugh | Armstrong Economics
The Disturbing Reasoning of Judge Brett Kavanaugh | Armstrong Economics

QUESTION: What is your opinion of Trump's Supreme Court pick? MG ANSWER: The main decision that I believe allows us to pierce the veil of judicial reasoning is Susan SEVEN-SKY v. Eric H. HOLDER, 661 F.3d 1 (2011). In this decision, Judge Brett Kavanaugh did not join Silberman's opinion. Instead, he wrote a sixty-five-page opinion that argued that the court could not even decide this case. In other words, his dissenting opinion deliberately did not resolve the case on the merits. What is more disturbing is his reliance on an 1876 law that has effectively placed government rights above that of the people. This I find VERY disturbing. Judge Kavanaugh's opinion was based on the 1876 law called the Anti-Injunction Act (AIA) that applied to the tax code, which I would argue is unconstitutional on its face. A court cannot raise arguments not raised by the parties, but it has a duty to first determine if the court has the jurisdiction to hear the case. It was down this path that Kavanaugh took a stroll which is rather disturbing for his conclusions. The government did not rely on this provision of the tax code with respect to jurisdiction. Few people ever heard of it. It appears he search the universe to find something that he could use to justify no making a decision of the merits. The purpose of the Anti-Injunction Act was to prevent taxpayers from challenging a tax in court before it is assessed. In other words, a citizen must first pay a tax under protest and then challenge it after the fact by seeking a refund, which presumes you even have the money to hire lawyers to TRY to get your money back. This effectively alters the entire legal system. You are entitled under EQUITY to seek an injunction to PREVENT a harm. Under this 1876 Anti-Injunction Act (AIA), the government gets to do whatever it wants and it can freeze all your assets and win by sheer oppression. An injunction is an equitable remedy in the form of a court order that compels a party to do or refrain from specific acts. A party that fails to comply with an injunction faces criminal or civil penalties, including possible monetary sanctions and even imprisonment. They can also be charged with contempt of court. Trust me, they can imprison you until you die for daring to challenge an abusive application of a tax. Congress can simply pass a tax saying anyone who has 3 children is promoting Global Warming and must pay 85% of all income as a tax for environmental compensation. Under the obscure 1876 Act, you can be imprisoned for life using contempt for even opposing the tax. That is not a free society! The Constitution under Article III created the courts and gave them the power under "law and equity" under Section 2. Consequently, Congress cannot pass any law that would negate the Constitution. Therefore, you have a CONSTITUTIONAL RIGHT to injunctive relief to PREVENT a harm. That is the entire purpose of EQUITY, to seek relief from the LAW when it is unreasonable. If the government seizes all your property under some tax statute, the 1876 Anti-Injunction Act (AIA) would then prevent you from hiring a lawyer, and in effect, you will be denied any redress in a court of law until AFTER they take all your money if you have anything left to hire lawyers. Therefore, I would bluntly disagree with Kavanaugh's dissenting opinion. This is so pro-government and anti-human rights no less unconstitutional, it does not reflect a country a reasonable person would want to live. Because it was a dissent and not the majority of the court, then it did not take any effect. My concern is his willingness to allow Congress to circumvent the Constitution. If this statute was actually in play, I would argue it is patently unconstitutional for it would deny the application for equitable relief and overrule Article III. US Constitution Article III Section 1. The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office. Section 2. The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;--to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--to controversies to which the United States shall be a party;--to controversies between two or more states;--between a state and citizens of another state;--between citizens of different states;--between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects. In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make. The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the state where the said crimes shall have been committed; but when not committed within any state, the trial shall be at such place or places as the Congress may by law have directed. Section 3. Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court. The Congress shall have power to declare the punishment of treason, but no attainder of treason shall work corruption of blood, or forfeiture except during the life of the person attainted.

Mike6712
Mike6712

Roe V Wade, like the Defense of Marriage Act, are two examples of Washington DC taking control over what is rightfully the purview of the individual states.

OkieNomics
OkieNomics

"Purview of the states..." That questions has been settled by both a war and stare decisis, which is why the only way to restore the 10th amendment is to bolster it via a Constitutional Convention.

MichaelTanner
MichaelTanner

Interesting!


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