The further to the left or the right you move, the more your lens on life distorts.

Tuesday, July 10, 2018

"Hey Hey, Ho Ho"

What do John Roberts, Clarence Thomas, Samuel Alito, Antonin Scalia, Neil Gorsuch, William Rehnquist, David Souter, and Anthony Kennedy all have in common. For one thing, they were appointed by GOP presidents. For another they were victims of the Chicken Little strategy. With each of their nominations to SCOTUS, the Left predicted an apocalypse—women's rights and health would degrade, constitutional protections would disappear, minorities would be relegated to a trash heap, and of-course, Roe v. Wade would be overturned. There's only one problem—none of that happened.

Each of those jurists applied their view of the law and the constitution in their own way, but each recognized the nexus of constitutional rights and a consideration of public sentiment and judicial precedent. Despite the "hey, hey, ho ho" idiocy of protesters who would have readily rejected Thomas Jefferson had he been a nominee, Brett Kavanaugh will do exactly what his predecessors did—apply the constitution and the law to make decisions that matter.

The Chicken Little strategy creates a boogieman who, if you are to believe the Dems, will destroy the rights of everyone, disregard precedent, and run roughshod over democracy. But like a boogieman in a bad dream, their claims are fantasy and their predictions simply haven't come to pass. John Roberts, Clarence Thomas, Samuel Alito, Antonin Scalia, Neil Gorsuch, William Rehnquist, David Souter, and Anthony Kennedy did NOT relegate women to backroom abortions; they did NOT trample the rights of minorities; they did NOT usher in an authoritarian state—in fact, they largely opposed one.

The editors of The Wall Street Journal comment:
Democrats will also claim that a new conservative 5-4 majority will mean the rollback of American rights from abortion to voting. Don’t believe it.

The change we expect would be a Court that returned to the role it played before the 1960s when the Justices became an engine of progressive policy. The American left is distraught because it fears losing the Court as its preferred legislature. A conservative Court won’t overturn liberal precedents willy-nilly. But we hope it will be inclined to let most political questions be settled where they should be in a democracy—by the political branches.

This still preserves for the Court a large role in protecting fundamental rights and the structure of the separation of powers that is a bulwark against tyranny. The Court has become far too embroiled in politics, which has undermined public faith in the law and Constitution.

We firmly believe that liberals have much less to fear from a conservative majority than they imagine. A genuinely conservative Court might even help progressives by liberating them to focus once again on the core task of self-government—persuading their fellow Americans through elections, not judicial fiat.
The coming war against Brett Kavanaugh will be ugly. It will attempt to use hysteria, dishonesty, and hyperbole to defeat the nomination of a respected judge. The Democrats will, in the process, hurt themselves, and far more important, erode respect for government institutions. But that's what they've been doing for the past two years.

We'll see what happens.


Law Professor Glen Reynolds comments:
As a lawyer messaged me on Facebook today, Kavanaugh will be Hitler, because whoever Trump nominated was going to be Hitler.

But, of course, when everyone’s Hitler, nobody’s Hitler, and the Democrats have been slinging the H-word around rather a lot for the past couple of years. When you have the hysteria turned up to 11 all the time, it has less traction when you need it. (As comedian Dennis Miller tweeted: “Just to keep things in perspective, or not, Trump could nominate either Amy Coney Barrett or Vladimir Putin tomorrow and the headlines would be exactly the same.” He’s not wrong).

Still, brace yourself for a lot of hysteria. But here’s a parting thought: If so much hangs on the appointment of a single person to the Supreme Court that it matters more than almost anything else in our politics, then maybe the Supreme Court matters too much. In a healthier republic, it would matter less.
The reason it matters so much is that Democrats want the court to circumvent their failure to enact left-leaning legislation through the congress, by cretaing law from the bench. Part of the Dem's legislative failure has to do with the simple reality that they have failed to win congressional elections during the past decade. A more introspective party might ask why that might be, why their policies and proposals don't resonate with the electorate. Instead, they blame the Russians.

A left-leaning SCOTUS would undoubtedly be more activist. That can't happen until the Dems win the presidency and the congress. And that won't happen if the Dems drift ever-further to the left.