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The Case for Kavanaugh

How "judicial philosophy" figures into the decision to support or oppose a nominee.

[I was invited by an online journal to contribute a 1000 word piece on why---setting aside the recent post-hearings accusations---Judge Brett Kavanaugh should be confirmed that could be published before the Senate vote. My essay would then be paired with one opposing his confirmation. Unfortunately, after I wrote the piece, the journal decided it could not devote any additional space to the Kavanaugh nomination. So I am posting it here instead.]


I have been asked to make the case for the confirmation of the President's nomination of Judge Brett Kavanaugh to sit on the Supreme Court of the United States, without regard to the questions raised after the close of his Senate Judiciary Committee hearing. I am happy to do so.

The Constitution gives the President, not Congress, the power to select federal judges, and gives the Senate the power to confirm or reject the President's pick. As with executive branch appointments, a senator should not reject a presidential pick on the ground that he or she would have made a different choice, for the power of choice lies with the President. Rather, our system contemplates that the Senate will confirm presidential picks who are qualified, and reject nominees who are unqualified.

What, then, are the qualifications to be a judge? They include intelligence, legal skills, honesty, and temperament. If the list stopped there, there would be no doubt that Brett Kavanaugh was not only qualified, but highly qualified to sit on the Supreme Court. Indeed, he was rated "highly qualified" by the American Bar Association—an interest group not always receptive to the nominees of Republican presidents.

His twelve years as a judge on the powerful D.C. Circuit Court of Appeals provide overwhelming evidence of these qualifications. His 300 opinions have been thoughtful and well reasoned. His reasoning has repeatedly been adopted by majorities of the Supreme Court. He gets high marks from, well, from everyone for his intelligence, decency, and judicial temperament. He is, in fact, what might be characterized as an "establishment" Republican choice. Had Jeb Bush been elected president, no doubt Brett Kavanaugh not Neal Gorsuch would have been his choice to replace Justice Scalia.

If qualifications for a judgeship stopped there, the case for Kavanaugh would be open and shut. Indeed, much the same case could have been made for my law school classmate Merrick Garland, who sits with him on the same court. But qualifications do not stop with smarts, skills, honesty and temperament.

I agree with Joe Biden who, as Senate Judicial Committee chair, insisted that a nominee's "judicial philosophy" is also relevant. It was on that ground that Biden and his Democratic colleagues—joined by six Republicans—opposed the confirmation of Judge Robert Bork, who easily met the standard for smarts, skills, etc.

What is "judicial philosophy?" As the term suggests, "judicial philosophy" is about the views of a nominee not his or her ability. Above all, it is a nominee's view of (a) the proper method of interpreting our written Constitution, and (b) the proper role of a judge in our constitutional republic. With respect to the former, Brett Kavanaugh is an "originalist," which today means he believes that the meaning of the text of the Constitution should remain the same until it is properly changed by an Article V amendment.

The original meaning of the text is the meaning the general public would have ascribed to the words and phrases of the Constitution in context. This "original meaning" originalism is different from the focus on original framers intent that originalists like Robert Bork once advocated. "Framers intent" originalism asked how the framers would have decided a case now before the court, which is actually a thought experiment, not a historical question. Today's originalists recognize that the application of original meaning to the facts of a case is distinct from identifying the content communicated by the text that is to be applied.

With respect to the role of the judiciary, Judge Kavanaugh thinks it is as much a duty of a judge to invalidate a law that conflicts with the original meaning of the Constitution as it is to uphold a law that comports with that meaning. In contrast, a "judicial conservative" like Robert Bork professed a commitment to "judicial restraint." By this is meant a judge should defer to the majoritarian or "popularly accountable" branches of government.

While old-school progressives once preached judicial restraint, from the Warren Court to today, they have favored judges actively invalidating unconstitutional laws—though many urge conservative judges to defer to legislatures that pass progressive measures, or to precedents progressives like. In short, they favor "judicial restraint for thee but not for me."

In my view, senators are within their prerogative to reject Brett Kavanaugh because they disagree either with his originalism or with his willingness to invalidate unconstitutional laws. But I also believe that, if that is what they are doing, they have an obligation to specify exactly what it is about his judicial philosophy with which they disagree. And they can only do that by identifying what the senators believe to be the superior judicial philosophy. These are issues they failed even to raise during his confirmation hearing.
Instead, we heard a lot from Democratic senators about particular case outcomes they hoped or feared Judge Kavanaugh would reach. But nothing about why such outcomes were more or less consistent with the written Constitution that he—and they—took an oath to support. In contrast, Republican Senators like Mike Lee, Ted Cruz, Ben Sasse and John Kennedy engaged Judge Kavanaugh—in some cases critically—with his views of constitutional interpretation and precedent.

Because I think the meaning of the text of the Constitution should remain the same until it is properly changed by amendment, and that judges have a constitutional duty to invalidate laws that conflict with that meaning, I believe the President's choice of Brett Kavanaugh—who is otherwise highly qualified—should be confirmed. If Democrats disagree they should specify the approach they think is better.

If their "judicial philosophy" is that a judge should simply reach all the outcomes that a progressive Democrat would like the Supreme Court to reach, they should candidly say so. If they believe that the precedents they like—like Roe v. Wade—are sacrosanct, but those they detest—like Citizens United—are to be discarded, they should identify how we know which precedents are binding and which are not.

Failing that, they too should vote to confirm Brett Kavanaugh.

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  • Joe_dallas||

    Almost the entire objection to Kavanaugh is his judicial philosophy - ie originalism.

    The opposition exhibit 2 was kavanaugh's outburst/response to the continued allegation as not be civil or impartial

    However is initial responses to the original allegation was quite civil and reserved, It was the constant repetition of the same allegation that drew the ire of Kavanaugh.

    This is much weaker that an a "She Said - He Said"

    No place or time,
    evolving specific details
    All named involved individuals denying the event.

    The normal prudent course of action would be to re assess the allegation and have the accuser provide additional data to support the allegation. Instead the anti-kavanaugh forces have repeated the allegation inspite of the very weak supporting information.

  • Scarecrow Repair & Chippering||

    I don't think they gave two shakes about his originalism, only that he did not agree that Roe v Wade was the 8.5th amendment written in invisible ink.

  • Brett Bellmore||

    But, since originalism leads to that conclusion...

  • Sarcastr0||

    It's not just Roe, though it is functionally oriented. Which nominations have been about for quite a while. At least since the New Deal.

  • ||

    Decisions regarding the pelvic rights are sacrosanct. The rest are not.

  • rsteinmetz||

    Kavanaugh's opponents now seem to be focusing on his "honesty" by saying he was not truthful with the Committee.

  • santamonica811||

    Which makes sense. Assuming that Ford (and others?) *are* telling the truth; it's still essentially impossible to prove an ancient sexual assault. His repeated lies to the committee, however, may be more easily shown to be false. So, of course it makes sense that this might be the focus.

    ... [cont]...

  • santamonica811||

    ... [cont]...

    There are 3 possible approaches to disqualifying him (the 4th is sort of part of # C):
    a. Sexual assaults. Upside: So serious, if proven it would be an automatic DQ. Downside: Essentially impossible to prove.
    b. Perjury: Upside: Easier to prove. Downside: Most potential lies were about tangential issues, so many senators would still vote to confirm, even if perjury is shown.
    c. Temperament. Upside: Easiest to prove. Enough (ie, 51+) senators believe he has demonstrated poor temperament in parts of his opening statement, and in several parts of his testimony. Downside: Many of those same senators will find that inappropriate levels of anger will not detract from his ability to be a Sup. Ct Justice. (I fall into this camp...I think a person can be an appellate judge or justice and be an overall awful person as well. Temperament might matter a great deal to a judge who has to control her courtroom. But for an appellate judge? Nah.)

    ...[cont]...

  • santamonica811||

    ... [cont]...

    (d) Delusional thinking. I was shaken by K's reliance on a paranoid and delusional theory that this is all part of a pro-Clinton conspiracy...which requires ignoring the fact that Ford raised her alleged assault WAY before he was even nominated. If a person is such a moron, or so deluded, that he believes such an idiotic theory, does that call into question his ability to serve on the highest court and to become one of the 10 or 12 most powerful people in the United States (court, plus president, speaker of the house, leader of the senate)? It sure does for me, but YMMV.

  • Armchair Lawyer||

    Well, depends what you mean by "conspiracy"

    Let's propose the following theory. Ford contacts Eshoo and the Post with her story. Eshoo brings in Feinstein. They look at the allegations

  • Armchair Lawyer||

    Now, if you're a trusting sort, you trust that Feinstein just sat on them, to protect her, and the letter just magically was leaked at just the right time. No fault of Feinstein's, sometimes these things happen. Darn. But once it was leaked, then it needed investigation.

    If you're the "conspiracy" sort, you think "Well, Democrats need to delay the vote past the Senate elections. So, if we reveal this at just the right time, we can stretch on the approval process another month, maybe even two. Maybe you'll even get K yanked. Importantly, you need to stretch it out, so another nominee can't be dropped in. Then, well, it's election time. Can't have a lame duck Senate confirm a choice.

  • bernard11||

    Ah. Playing politics with nominations.

    Two things.

    1. Whatever games the Democrats played or didn't play, that is irrelevant to whether Kavanaugh deserves to be on the court.

    2. Playing politics? Delaying? Two words: Merrick Garland. Now STFU.

  • TwelveInchPianist||

    The repubs had a majority, and had the votes to tank the Garland nomination. The Dems don't, so they have to resort to shenanigans, starting with ridiculous protests on the Senate floor and ending with false rape allegations against the nominee. The majority should just ignore all this ridiculous crap and confirm.

  • Rev. Arthur L. Kirkland||

    I agree. The Republicans should do their damnedest.

    I also expect Democrats to do the same when they hold the cards.

    Should be fun. I am content to let time sift this.

  • Sarcastr0||

    Your calling of shenanigans here and not there seems suspect. After the release of the allegations GOP was and continues to be free to do what they want...and pay the political price.

    The very longstanding tradition of late breaking allegations is not some new evil tactic the Dems came up with just now. Stonewalling a Justice is a new one, though.

  • bernard11||

    The repubs had a majority, and had the votes to tank the Garland nomination.

    I actually don't think they had the votes, but it doesn't matter. The point is they played politics and delayed in the hope of a Trump victory.

    I don't think it is reasonable to say, "Our political delaying maneuver was OK, but yours isn't." You go to war with the army you have, as a well-known Republican once said.

  • TwelveInchPianist||

    "I don't think it is reasonable to say, "Our political delaying maneuver was OK"

    Why not? Not all delaying maneuvers are created equal. Some involve control of the Senate . Others involve questionably-timed rape allegations.

  • Sarcastr0||

    Neat framing.

    Of course, abusing your control of the Senate is worse than playing with the timing of already existing allegations.

  • TwelveInchPianist||

    "Of course, abusing your control of the Senate..."

    Of course this is question begging. Who says that not bringing the vote to the floor is abuse? If a majority of Senators wanted a vote, they could have forced one.

  • Sarcastr0||

    Indeed. That is my point - you are also question begging.

  • Stephen Lathrop||

    Only if members of the majority party were willing to defy the leadership of their own party, and trash a long-standing principle governing party conduct. The consequences would, predictably, have been career-long deprivation of power, honors, and opportunity within their own party. So yeah, not bringing the vote to the floor was abuse, and most of all, abuse by the majority party of some of its own members.

  • iowantwo||

    Care to tell us exactly what is "Abuse"? The Senate followed the constitution to the letter.
    Confirmation is a political activity, held in check by the voters. IF, if, voters agreed with you, they would have voiced their opinion at the polls.

  • Sarcastr0||

    Something can be the letter of the law and still abusive.

    Can you tell me what's abusive about what the Dems did, then? They also followed the law, and also relied on public pressure to get the GOP majority to cave, which it did.

  • Leo Marvin||

    "false rape allegations"

    How do you know they're false?

  • TwelveInchPianist||

    They're 35 years after the fact. They're strategically timed to affect the SCOTUS nomination. She lied about being unable to fly in order to delay the hearings. Her witnesses refute the allegation. I think that they're false. You are, of course, entitled to form a different opinion.

  • Sarcastr0||

    No, you should not just make up your mind, and that you have is disappointing.

  • MatthewSlyfield||

    Why not, we already have as much information as there is ever going to be.

  • Sarcastr0||

    That's an assumption itself.

  • TwelveInchPianist||

    "No, you should not just make up your mind, and that you have is disappointing."

    Well, as I outlined in the other thread, the true reporting rate for sexual assault is only around 2%, so I'd say that the odds are pretty good I'm right.

  • Sarcastr0||

    Statistical truth doesn't have any bearing on actual proof. You're smart enough I know you know that. What's going on?

  • NotAnotherSkippy||

    Physician, heal thyself.

  • Brightly||

    Disappointingly obtuse of you, Sarcastr0. There was and is no reason for the Democrats to believe this encounter happened, other than partisan advantage. The Republicans at least had the presumption of innocence to stand on, followed by Dr. Ford naming witnesses who could not corroborate her account.

    Stonewalling Garland may have been unprecedented, but it is nowhere near the moral equivalent of what the Democrats did.

  • iowantwo||

    The time stamp tells us you didn't yet know. But, we now know that Ford has lied on big material facts
    1. She in fact has coached a friend in how to 'pass' a poly graph. Also, that as a PhD psychologist, she is very familiar with polygraphs. Supported by a boyfriends sworn statement

    2. The 2 front doors story, is just that, a story. Supported by city building applications

    3. Fear of flying. Supported by being a sentient human

    There are a LOT more holes in her story. But the obvious lying about polygraphs shows intent to defraud the govt. Special Counsel Robert Mueller is indicting persons for that crime.

  • Sarcastr0||

    1) Disputed. Your 'in fact' is quite a low standard of proof, suddenly! Can I apply that standard to the disputed allegations against Kavanaugh?

    2) Good luck with that.

    3) Citing to personal contempt for all who disagree with you is not a good strategy.

    4) LOT. Well, then.

    It's all collateral partisan spatting, but the 'too good to check' style of the current attacks on Ford have so far not stuck, and just belittle the attacker.

  • Paladin_44||

    They didn't necessarily have the votes, but they did have the chair and that's all that it took.

  • Jim Lindgren||

    I didn't agree with how Garland was treated, but when the Senate is controlled by the opposition, most candidates nominated in March or later during a presidential election year are NOT confirmed before the election. Not confirming a March or later appt during a pres election year with a hostile Senate is par for the course. I think the last one appointed under these circumstances was in the late 1800s.

    You could have hoped for better treatment for Garland than the norm, but you couldn't count on Republicans treating him better than the Senate has treated such nominees in the past.

    At least the Republicans didn't destroy his reputation . . . .

  • bernard11||

    Suppose the allegations had surfaced a month or two earlier.

    What would have been different?

    My guess is that it would have played out much like it has. After all, there is still time to investigate and then nominate someone else, not that Grassley would have been any more eager to investigate then than he is now.

    Besides, complaints about Democrats delaying need to be balanced by the fact that the Republicans have been trying to railroad Kavanaugh through while severely limiting information about his past activities. That's not directly related to the drinking and sexual assault matters, but it does suggest, as does his testimony, that there is a lot hidden.

  • iowantwo||

    Grassely is not the one holding back the accusation for 7 weeks.

    The Senate Judiciary Committee, has a very expensive, well trained, and experienced investigative staff. The staff can actually compel a witness to give a statement. The FBI cannot. The Majority, and Minority have their own staffs, and the work together to investigate in a non-partisan manner.

    Until DiFi took a giant shit in the middle of the room. Then refused to cooperate with the majority staff, to do simple investigative interviews, blowing up any ability to offer a non partisan conclusion.

  • Brett Bellmore||

    "His repeated lies to the committee, however, may be more easily shown to be false."

    If there were any, at any rate.

    A. Agreed, and denying you're guilty of a crime is basically never prosecuted as perjury anyway. It would violate the protection against self-incrimination.

    B. Easier to prove, and Ford has problems on this front, too. Most of the supposed lies are just a matter of choosing to interpret Kavanaugh's words in a perjurous manner where innocent interpretations are available. Again, not how perjury works.

    C. Temperament. A demand that he remain calm and polite while being accused of being a monster. Nobody buys this excuse for rejecting him except those who were already committed to doing so.

    D. It's not paranoia when people are really out to get you.

  • TwelveInchPianist||

    Well, all they have to do to show that Kavanaugh perjured himself is:

    1. Get the media to lie about Kavanaugh getting legacy preferences to Yale law school.
    2. Get the media to lie about whether or not Judge denied the allegation.
    3. Get the media to lie about whether or not Kavanaugh claimed to be old enough to drink legally at the time.

    And voila, perjury.

  • bernard11||

    Kavanaugh pretty strongly implied that he got into Yale undergraduate without any preferences also.

    That's surely what he was getting at when he said,

    "Senator, I was at the top of my class academically, busted my butt in school. Captain of the varsity basketball team. Got in Yale College. When I got into Yale College, got into Yale Law School. Worked my tail off,"

    You know, it's funny to me how his defenders have to argue about the interpretation of so much of what he says.

  • TwelveInchPianist||

    Good God. You get called out on the lie about him being a Yale Law legacy, so you fall back into a lie about what he said about his undergrad admission? Do you even listen to yourself?

  • Bob from Ohio||

    Its universal to think one is self made. Hardly a lie.

  • TwelveInchPianist||

    Perhaps, but despite the desperate reaching by bernard11, Kav never claimed the he got into Yale college without preferences. He did imply that he got into Yale Law without connections. And he was correct.

  • bernard11||

    TIP,

    I didn't get called out on a damn thing. This is my very first comment on the Yale admission business.

    Do you disagree on the impression he was trying to leave?

  • TwelveInchPianist||

    You, plural.

    "Do you disagree on the impression he was trying to leave?"

    I believe that he was trying to leave the impression that he worked hard and got into Yale. Your claim, that he is dishonestly trying to say the he got into Yale college without a legacy in the quote you cited, is utterly unsupported. It's just batshit.

    The claim of some leftist media outlets, that he dishonestly said that he got into Yale Law without a legacy, is also a lie, as Yale Law doesn't give legacy preferences to relatives of Yale College.

  • Jim Lindgren||

    What was his Yale undergraduate GPA? When I was there (BA, 1974), graduating cum laude (as Kavanaugh did in 1987, according to Wikipedia) wouldn't normally have been enough for a white male to get in to Yale Law School from Yale College. Being at least magna cum laude would have been expected. It appears that he wasn't Phi Beta Kappa, either, so there probably was something else (strong activities, recs, LSATs, or legacy) that moved him from a near-miss to a hit.

  • PoxOnBothYourHouses||

    Brett Bellmore: "Nobody buys this excuse for rejecting him except those who were already committed to doing so."

    Well, I'm officially nobody, and I was pretty much on his side until his performance -- which struck me as a self-damaging, bridge-burning rant by a broken man who was and out of control and possibly even under the influence.

    I had read that he was undergoing some practice sessions to be ready for the committee session, and some people even said his performance was Trump-like, but I saw no evidence that he was at all prepared for basic questions on his drinking or anything else. The Democrats were engaging in political theater (which they have been doing all along), and he must have known that, but his combativeness, deflection of questions, and so forth were so over he top that I can no longer see him as fitting, legitimately, on the court.

  • NotAnotherSkippy||

    And on Earth2 you were pretty much on his side until his performance -- which struck you as a self-damaging, cold, unfeeling, calculated act clearly demonstrating his sociopathy.

  • Jim Lindgren||

    Come on. That was press spin that Kavanaugh lacked judicial temperament. He has served on the second highest court for a long time and his temperament was viewed as exemplary by both Republicans and Democrats.

    After his interview on Fox News a few days before the latest hearing, he was criticized as too calm. Some said that an innocent man wouldn't seem so bloodless. People questioned whether he had the fire that Thomas showed to fight for the appointment. So Kavanaugh let a bit of his frustration out in the hearing. Then they said he was intemperate.

    Given his experience, one thing you can be sure of is Kavanaugh's judicial temperament. On whether he misled people on his drinking, well . . . .

  • Stumble||

    Are we including the first hearing or not? Because Sen. Blumenthal actually did exactly what is being proposed here.

    One of the issues many have with Kavanaugh's legal philosophy is his incredibly expansive views on executive power. US v Nixon is the seminal case, and despite some early writing that indicated he would support Nixon his later work very clearly comes down in opposition to the idea that a sitting president can be subpoenaed. Critically K. takes the view that were a sitting President to commit a crime he could not be arrested or investigated until he is out of office.

    There is more than an inference that K. would support the idea that a sitting president cannot be indicted for criminal acts until such a time as his term is over. This, combined with his intentional ducking of exactly these questions during his confirmation, are a serious concern. The idea that a sitting president is immune to criminal prosecution is terrifying, yet this is exactly what K has recommended, and an issue that was raised during his first confirmation hearing.

  • Soronel Haetir||

    I see placing so much power (to tie up the executive branch through criminal prosecution) in a single individual as equally terrifying. Much less so if that power first has to go through the other political branch or wait to be exercised.

    Of course, I'm not sure that a criminal conviction against the president, by itself, would mean much of anything. It would not mean an automatic removal from office, I'm not sure that it could be used to curtail the official power of the president. Of course it would place a lot of pressure against Congress to act but if the charge were seen by a large enough percent of the people (likely wouldn't need more than 10%) as a witch-hunt it would only generate more gridlock.

    If the triggering behavior were egregious enough I do think Congress would act but for the usual dirty edges of politics ...

  • MatthewSlyfield||

    Of course, if some idiot federal prosecutor actually tried to bring criminal charges directly against a sitting President, the President can simply pardon himself.

    The only legally recognized limits on the Presidential pardon power are that he can only pardon federal offenses and he can't issue pardons for future acts.

  • subpatre||

    Kavanaugh's views are not outside any mainstream, and actually are common sense. Without some form of protection, detractors can deliberately cripple the office through suits, petty accusations, etc.

    Constitution of Virginia, " Article IV. Legislature " Section 9. Immunity of legislators.
    Members of the General Assembly shall, in all cases except treason, felony, or breach of the peace, be privileged from arrest during the sessions of their respective houses; and for any speech or debate in either house shall not be questioned in any other place. They shall not be subject to arrest under any civil process during the sessions of the General Assembly, or during the fifteen days before the beginning or after the ending of any session.

    This is no block to arrest for (commonlaw) major crimes, but to stop endless 'broken tail-light' tickets and nuisance suits. Like the 30-or-so accusers of the current President, most nuisance items vanish completely once the immediate objective is gone.

  • MatthewSlyfield||

    PS.

    And a local DA would have trouble bringing federal charges against a sitting president as DC is not in any state and US military bases are largely outside state legal jurisdiction.

  • PoxOnBothYourHouses||

    Stumble: "Critically K. takes the view that were a sitting President to commit a crime he could not be arrested or investigated until he is out of office."

    No, no, and no! This is how things get played in the press. Kavanaugh's law-review article expressly states that Congress has the Constitutional authority to investigate the President, etc. His point is that after serving with a President, he no longer thinks it's a good idea, and he recommends that Congress consider deferring such actions until the President has served his term. He also expressly states that impeachment is Congress' power to evict a standing President if it wishes, following which prosecution could be undertaken. He expressly states that this should be the situation with with all future presidents and mentions "number 44" (who would be Obama)

  • iowantwo||

    Attaining the Office of President is a political outcome. Removing a President, is by constitution, also a political activity. This is by Constitutional design. If the President commits a crime, Congress has the power to remove the President.
    The notion that a Person cannot be prosectuted for crimes is silly. With the President, it takes 2 more steps, Indictment by the House and conviction by the Senate, Then the Justice Dept is free to do what it does.

  • Martinned||

    I guess the Conspirators are lining up pretty much exactly as you'd expect. Here is Randy Barnett starting with a technicality of dubious legal merit and purely coincidentally ending up on the far right side of the Republican party. Must be a Monday.

  • bernard11||

    Or a day of the week whose name ends in "day."

  • Rev. Arthur L. Kirkland||

    Prof. Barnett is the type of libertarian who adores Brett Kavanaugh but advocated rejection of Merrick Garland.

    I'd call that type of libertarian a Conspiracy-class libertarian, but that would be unfair to Prof. Somin, who genuinely is a libertarian yet somehow is also a Conspirator.

  • BigChiefWahoo||

    Are you attempting to re-characterize Merrick Garland as a jurist to be admired by libertarians, Rev.?

  • Rev. Arthur L. Kirkland||

    A libertarian would object to Brett Kavanaugh and Merrick Garland in roughly equal measure. The people pushing for Brett Kavanaugh are conservatives, not libertarians.

  • Brett Bellmore||

    Not really, us libertarians like us our guns and freedom of speech, so we can complain, and in the ultimate extremity, shoot the bastards. Basically nobody nominated by a Democrat is going to be good on those civil liberties.

    For instance, he has a record of anti-2nd amendment rulings.

  • Mr. Hook||

    "setting aside the recent post-hearings accusations"

    Otherwise, Mrs. Lincoln, how did you enjoy the play?

  • Bob from Ohio||

    "Otherwise, Mrs. Lincoln, how did you enjoy the play?"

    Yeah, no joke.

    Kav could say the Constitution mandates a Communist dictatorship and I'd still support him.

    Its all tribe now. On both sides.

  • Sarcastr0||

    Maybe don't lean into it so hard, Bob.

  • Bob from Ohio||

    I don't understand this comment.

  • Sarcastr0||

    You realize tribalism is bad, you see it on both sides. And then you try to become king of tribalism mountain.

    You have agency to not suck; use it.

  • Violent Sociopath||

    You first.

  • TwelveInchPianist||

    "Kav could say the Constitution mandates a Communist dictatorship and I'd still support him."

    Really? That would make a majority.

  • MoreCurious||

    I'm having a hard time believing that someone who is suggesting that Kavanaugh's qualifications "include intelligence, legal skills, honesty, and temperament" actually watched the hearing on Thursday. I'll give him the first two, but he failed miserably at the third and fourth. We can do much better, and we should.

  • Eddy||

    But in all likelihood we'll end up with worse if he's rejected.

  • bernard11||

    I doubt it, Eddy.

    From your POV the also-rans are just as likely as Kavanaugh to rule the way you want, and from my POV, they might at least not be lying scum.

  • Eddy||

    So can you give some examples of "also-rans" who are *not* lying scum, for future reference in case their qualifications ever become an issue?

  • bernard11||

    While old-school progressives once preached judicial restraint, from the Warren Court to today, they have favored judges actively invalidating unconstitutional laws—though many urge conservative judges to defer to legislatures that pass progressive measures, or to precedents progressives like. In short, they favor "judicial restraint for thee but not for me."

    Give us a break, Barnett. Conservatives are all principled and consistent, while progressives just put a finger in the wind.

    Right. I think that attitude alone makes your opinion on Kavanaugh worthless. You're as much a biased partisan as he is.

  • Rev. Arthur L. Kirkland||

    This is a movement conservative blog. You can't blame movement conservatives for promoting movement conservative positions. If you want liberal, or moderate, or libertarian positions, look elsewhere.

  • bernard11||

    Sure, ALK. But these guys at least pretend to be thinkers.

    Among the more frequent posters I'd say only Somin has shown much integrity.

    Barnett, like Eugene, is a smart guy, but more a committed partisan than any kind of disinterested observer. Maybe it's legal training, which I was lucky enough to avoid, but the reflex seems to be to advocate for one's side, whatever the merits, rather than to be objective.

  • Bob from Ohio||

    "advocate for one's side, whatever the merits, rather than to be objective"

    Mote meet beam.

  • bernard11||

    You know, Bob, I find it quite interesting that you, unlike some of the other conservative commenters here, never have anything substantive to say about anything. Instead, you just sneer at those of us you disagree with.

    Try thinking sometime, if you can manage it.

  • Leo Marvin||

    If you want to see Randy's tribalism in full flower, check out his Twitter feed.

    https://twitter.com/RandyEBarnett

  • Al S||

    Wait. An "online journal" decided it "could not devote any additional space to" this matter???

    Don't they know that ONLINE SPACE IS UNLIMITED (for all practical purposes) ???

    WTH?

  • Kyfho Myoba||

    Uhh, yeah. Anybody that had a had in writing the PATRIOT Act, expanding executive power, and then ruling as an appellate judge in favor of both of those ...... fuck that noise.

    But this will for sure fuck up the #MeToo tards. For some shits and giggles, look up the backgrounds of Ms Ford's brother, parents, and grandfathers (Nicholas Deak)

  • floridalegal||

    "In my view, senators are within their prerogative to reject Brett Kavanaugh because they disagree either with his originalism or with his willingness to invalidate unconstitutional laws. But I also believe that, if that is what they are doing, they have an obligation to specify exactly what it is about his judicial philosophy with which they disagree. And they can only do that by identifying what the senators believe to be the superior judicial philosophy"

    A cheery and intellectually honest position but, in this era, you are expecting more than can be delivered by Senators. I can't believe I am longing for the days of Strom Thurman (a Senator who ran for President as a Dixiecrat) who put aside his politics and clear differences with the judicial philosophy of the former general counsel of the ACLU and voted to confirm Justice Ruth Bader Ginsberg.

  • Eddy||

    Perhaps Thurmond was one of those Ginsburg was describing when she said: "Frankly I had thought that at the time Roe was decided, there was concern about population growth and particularly growth in populations that we don't want to have too many of."

  • Eddy||

    I can certainly see how a Dixiecrat would have found a kindred spirit in Ginsburg.

    But perhaps I'm being unfair...to Thurmond. Unlike Ginsburg, he professed to have changed his views.

  • CJColucci||

    I suppose it's possible that some actual working judge really does have a "judicial philosophy" in the sense of a comprehensive, coherent theory of law that meaningfully constrains unprincipled discretion and leads by a process a judge is generally competent to execute to reasonably determinate results. But I haven't seen it yet, and I distrust the blowhards who say they do. I much prefer the working stiff judges who understand how little their training, education, experience, and possession of the standard lawyerly toolkit qualify them for such lofty pretensions, and don't think they can casually sweep aside the combined efforts of their predecessors and peers with a smattering of law office history or undergraduate-level economics or philosophy.

  • Stephen Lathrop||

    I much prefer the working stiff judges who understand how little their training, education, experience, and possession of the standard lawyerly toolkit qualify them for such lofty pretensions, and don't think they can casually sweep aside the combined efforts of their predecessors and peers with a smattering of law office history or undergraduate-level economics or philosophy.

    If only there were more of that on this blog. But of course, that would make it unrecognizable—Burkean conservatism instead of movement conservatism.

    Colucci, do you think "movement conservatism," is even conservatism at all? It seems so opportunistic and essentially reactive that I'm not sure it even deserves its "-ism," which seems to me to over-dignify it. Where is the system in it?

  • CJColucci||

    Stephen (you can call me "CJ"), there is much in what you say, and I don't disagree with it as a matter of substance rather than terminology. Still, I leave to the parties concerned what names they choose to give to themselves, even recognizing that movements often end up named by their opponents.

  • Leo Marvin||

    "If only there were more of that on this blog. But of course, that would make it unrecognizable—Burkean conservatism instead of movement conservatism."

    The principal Burkean on this blog in my observation, Orin, generally reserves this platform for blogging on subjects of his scholarship. For his views on more topical matters, he's pretty active on Twitter.

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