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Free Minds & Free Markets

Judging Kavanaugh

Libertarians should be happy about Trump’s SCOTUS pick.

Some people are very angry about President Trump's new Supreme Court pick.

"Hell no, Kavanaugh! He is a dangerous man!" protesters shouted on the steps of the Supreme Court. Sen. Kirsten Gillibrand yelled, "What is at stake is freedom for LGBTQ Americans, for equal rights, civil rights..."

"They are freaking out because they don't understand," Ilya Shapiro, editor of the Cato Institute's Supreme Court Review, tells me. "Those top areas, abortion or gay rights or Citizens United, there's really not going to be a change."

Every time one party appoints a judge, the other party acts as if the appointment will fundamentally change America. But the Supreme Court is the most cautious of the three branches of government. Today's Court, headed by Chief Justice John Roberts, is especially respectful of precedent.

They almost always base their decisions on decisions made by prior justices, and they often defer to lower courts. That doesn't lead to many surprising changes.

Maybe that's why, despite activists protesting most every recent appointment, a study finds most Americans can't name a single Supreme Court justice.

We notice the president, and most of us can name at least some members of Congress. Those people might do something surprising.

Supreme Court justices, whether Republican or Democratic appointees, are not very likely to undo existing laws, especially laws that millions of Americans have already acted on.

After 45 years of legal abortions, Roe v. Wade isn't likely to be repealed. Gay marriage is pretty safe too after a quarter-million gay marriages. The Court's unlikely to reverse itself on either issue.

Partisans would be smarter to keep their eyes on issues where the Court is closely divided.

Private property cases like the Kelo decision might go differently with Brett Kavanaugh on the Supreme Court instead of swing-voter Anthony Kennedy. In that case, Kennedy joined the Court's four liberals in affirming the government's right to seize privately owned land and give it to other private landowners who might pay more in taxes.

Kennedy voted "for the bad guys," says Shapiro, adding optimistically, "Kavanaugh could very well be the fifth vote to overturn Kelo."

Also, affirmative action faces challenges. A lawsuit accusing Harvard of discriminating against Asian-Americans may reach the court soon.

Shapiro says, "Kavanaugh could provide the fifth vote to overturn that 40-year-old experiment with using racial preferences to promote some kind of nebulous diversity."

Kavanaugh also has a history of reining in government regulators—"all these alphabet agencies that increasingly intrude in people's lives," as Shapiro puts it. "He has written at length that the government keeps doing things that it doesn't have the power to do."

At the White House, the day he was nominated, Kavanaugh made a point of saying, "The Constitution's separation of powers protects individual liberty."

That was good to hear.

As a judge in D.C., Kavanaugh voted to strike down some environmental rules. "I like the idea of clean air and clean water," says Shapiro, "but the EPA has taken a lot of liberties."

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  • loveconstitution1789||

    Oh they understand. They understand that Trump represents Americans rejecting the Lefty narrative and that is dangerous.

    Trump nominating two SCOTUS justices...so far, sets a legacy that was supposed to be Hillary's and the Left.

    The SCOTUS was supposed to be Lefty controlled by now.

    Lefties had a sad that their entire plans are in shambles and turned on a dime with election 2016.

  • DajjaI||

    I know two of the protesters, Gold and Sarsour, not personally, but I've followed their social media for over a year. I admire their work on Israel/Palestine. They believe in equal rights. Which I do too, but they are both socialists whereas I am libertarian. I think it's funny that they both got arrested here because it's almost like they are professional protesters. In a country of half a billion people you'd think they could find someone to rile up to fight this issue for them. It's almost like they have a Jesus complex.

    Anyway I also think Zina Bash's white power sign is pretty funny. Zionists (and Nazis) will be happy with this pick, but they are heading for disappointment. Lots of anti-Israel candidates will be elected in the Blue Wave, and this will cramp financial and military support for Israel, ultimately forcing a one-state solution with full freedom of speech and religion.

  • colorblindkid||

    A one state solution "that will only be possible by the extermination or expulsion of the Jews"

  • JesseAz||

    If you think her randomly crossing her arms is a white power symbol.... You're dumber than I gave you credit for. So you have that going for you.

  • buybuydandavis||

    "Libertarians should be happy about Trump's SCOTUS pick"

    This Libertarian Moment brought to you by The Deplorables, over the pants shitting hysterics of the Woketarians at Reason

  • chemjeff radical individualist||

    We'll remember this when Kavanaugh votes for unlimited executive power and unlimited domestic spying.

  • Gilbert Martin||

    I heard on the radio this morning that a witness (a Kavanaugh supporter) who was waiting in line to get in to the hearing saw someone with a bag of money handing out cash to some people in exchange for a piece of paper and telling them to yell, scream, etc when they got into the hearing.

    So it's just like when unions hire protesters to man picket lines or boycott in front of company headquarters.

  • chemjeff radical individualist||

    sounds legit

  • BestUsedCarSales||

    You could tell it was a bag of money because it had a giant dollar sign on it.

  • Gilbert Martin||

    Or maybe because he could see money being pulled out the bag.

    That works too.

  • chemjeff radical individualist||

    Or maybe "heard it from some guy on the radio" isn't an unimpeachable reference.

  • Gilbert Martin||

    There is no such thing as an "unimpeachable reference" on the planet.

  • chemjeff radical individualist||

    So I'm not inclined to believe your "guy from the radio".

  • JesseAz||

    I bet you still believe the story of the Parkland parent and how awful kavanaugh is despite video evidence against it, Jeff.

  • Gilbert Martin||

    I passed along something I heard on the radio.

    Whether you believe it or don't believe it makes no difference to me.

    Nor does whether it's true or not bolster anything you've had to say about Kavanaugh.

  • I am the 0.000000013%||

    saw someone with a bag of money handing out cash

    Libertarians do love the free market. My yelling and screaming are pretty high quality. I have a 3 octave range if I adjust my underwear right. How can I get some of that cash?

  • chemjeff radical individualist||

    Ya know, it is simultaneously possible to be opposed to the hysteria of the liberals opposing Kavanaugh, and also opposed to the unlimited executive power and unlimited domestic spying that Kavanaugh represents.

    Objecting to Kavanaugh's position on domestic spying does not mean endorsing yelling and shouting and disrupting at a Congressional hearing.

    Like anyone that either tribe would nominate, Kavanaugh is a mixed bag. He is good for liberty on some issues, terrible for liberty on others. I don't think "mixed bag" is reason enough to start celebrating.

  • Shirley Knott||

    ^^This.

  • JesseAz||

    Problem is , Jeff, you're an irrational purist. If kavanaugh is more consistent in his upholding liberty, take it as a win.

  • Iheartskeet||

    I agree we should call 'em like we see 'em, but even mixed bags fit somewhere on a range. It looks to me like he is decidedly towards the L side of the range, and that IS cause for a least a beer.

    And, I'll risk charges of "whataboutism" and say we could have done much much worse. Thats at least another beer.

  • OpenBordersLiberal-tarian||

    It's disappointing to read this on my favorite libertarian website. The nomination of this dangerous right-wing extremist is nothing short of a national emergency, and Reason decides to run a piece essentially saying Hey, it won't be so bad! That's terribly irresponsible.

    Actually, Kavanaugh is such a horrible choice that major new scandals are emerging even now. The racist gesture was mentioned above, and he rudely refused to shake hands with the father of a victim of gun violence. These shocking controversies make the baseball ticket scandal look minor in comparison.

    To help atone for this severely flawed screed, I want Reason to have Shikha Dalmia write a piece analyzing Kavanaugh from an immigrant's rights perspective, and Elizabeth Nolan Brown to discuss the implications for abortion access. Maybe Scott Shackford could also explain what's at stake for the LGBTQ+ community.

    #CancelKavanaugh
    #Resist

  • Gilbert Martin||

    "I don't think "mixed bag" is reason enough to start celebrating."

    Acknowledging that it's physically impossible for Kavanagh to be worse than anyone that Democrats would have picked if they were running the show doesn't constitute celebrating.

  • chemjeff radical individualist||

    Acknowledging that it's physically impossible for Kavanagh to be worse than anyone that Democrats would have picked

    On which issues? Gun rights? Sure. Abortion rights? No. Domestic surveillance? Kavanaugh is probably a lot worse. Get your RAH TEAM head out of your ass.

  • Gilbert Martin||

    The only one here with their head up their ass is you.

  • dxh@yahoo.com||

    The reality is that if you are for anti-activist judges who will NOT make shit up and legislate from the bench and instead expect the legislature to do their jobs, then conservative republican supreme court nominees are your ONLY HOPE of that happening.

    It might come at the cost of being a little to quick to trust the government on things like 4th amendment abuses but I would rather have that which can be openly debated and controlled via voting for the executives and legislatures who implement such things.

  • chemjeff radical individualist||

    Are we pretending that judges nominated by Republicans aren't "activist judges" from time to time?

  • dxh@yahoo.com||

    Not pretending anything. Pretty much know what we get with Republican judges.

    But the fact remains that Democrat judges are nightmares on individual liberty and pretty much always will side with the state apparatus over the rights of the individual on pretty much every issue except abortion. They are state worshipers and believe everything the state says or wants to do is ok, as long at their people are in power.

  • Gilbert Martin||

    "But the fact remains that Democrat judges are nightmares on individual liberty and pretty much always will side with the state apparatus over the rights of the individual on pretty much every issue except abortion"

    Bingo.

    Fealty to a right nowhere enumerated in the Constitution doesn't outweigh opposition to rights that are enumerated therein - such as the right to keep and bear arms and private property rights.

  • chemjeff radical individualist||

    But the fact remains that Democrat judges are nightmares on individual liberty

    Except when they're not.

    http://www.theatlantic.com/pol.....nt/530865/

  • chemjeff radical individualist||

    Maybe you should stop looking at the court in terms of "good guys" and "bad guys", or "team red" and "team blue".

  • OpenBordersLiberal-tarian||

    Excellent point. Probably the most egregious recent example of right-wing judicial activism was the Heller decision, in which a highly ideological Court invented a personal right to own a gun while not serving in a militia. Of course my favorite current Justice, RBG, joined the dissent.

  • Sevo||

    Isn't RGB dead yet? If not, why not?

  • Haha, charade you are||

    A lot of people joke about them pulling a "Weekend at Bernie's" type stunt when the old bat finally croaks, but I'm leaning more towards them having gone the Jughead route and painted fake eyes on her eyelids.

  • DH||

    Good job on going full retard.

  • Cynical Asshole||

    Private property cases like the Kelo decision might go differently with Brett Kavanaugh on the Supreme Court instead of swing-voter Anthony Kennedy.
    ...

    Also, affirmative action faces challenges. A lawsuit accusing Harvard of discriminating against Asian-Americans may reach the court soon.
    ...

    Kavanaugh also has a history of reining in government regulators
    ...

    Kavanaugh is also likely to reject new gun control laws.

    All of which are things that the Progressives will hate too. They just focus on abortion and LGBTQ stuff because that's what angers up their supporters. IOW, they know full well that none of that's going to change, but the useful idiots are stupid enough to believe it.

  • Dillinger||

    how is a judge dangerous?

  • DesparateReasoning||

    Sadly Kavanaugh will almost certainly be worse for the 4th Amendment than Kennedy could ever hope to be. The good news is that maybe the 2nd Amendment will get treated like a first class citizen again. I'm hoping that with Gorsuch and Sotomeyer, we may yet get some real support for the 4th Amendment when the Liberals get to elect a new justice. More likely we'll get another far leftist tool like Kagan who can't even pretend to care about rational arguments or jurisprudence half of the time.

  • CKS||

    I'm so sorry to see that John has missed the real tragedy, which is that we are spending all our energies deciding WHICH Ivy League ex-prosecutor will join the other 8 Ivy League ex-prosecutors, filling out the Supreme Court, to then decide what is fair and just in the courtrooms of America.

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