Ruth Marcus Joins The Brett Kavanaugh Fan Fiction Club

Marcus, as well as Noah Feldman, hold Justice Kavanaugh in very low regard.

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Ruth Marcus of the Washington Post is the newest member of the Brett Kavanaugh fan fiction Club. She imagines that the left can "nudge" Kavanuagh to uphold Roe by offering positive reinforcement–like he is a puppy who wants scooby snacks.

It is possible to imagine Kavanaugh joining Chief Justice John G. Roberts Jr. in refraining from outright abandonment of constitutional protection for abortion rights.

So what is the best way to nudge him in that direction? Here's the thing to understand about Kavanaugh: He wants to be liked and admired. Unlike some of his conservative colleagues, he enjoyed being part of, and respected by, the legal establishment; teaching at Harvard Law School was important to him. In the aftermath of Christine Blasey Ford's testimony, and Kavanaugh's intemperate outburst, that kind of acceptance is no longer available to him.

But there are ways for him to carve out a reputation as a thoughtful justice, win plaudits from those whose acceptance he still craves and prove that the searing confirmation process did not leave him embittered.

Even some of those who want to narrow or eliminate the right to an abortion almost certainly fear what eliminating it entirely will do to their party's future at the polls. It is not hard to imagine Kavanaugh, who has the most extensive experience in politics among the justices, wanting to avoid deciding the Mississippi case in a way that would likely hurt Republicans in the midterm elections a few months later.

The smartest strategy, therefore, is to encourage Kavanaugh when he demonstrates temperateness and restraint. The dumbest approach is to alienate him. There isn't much prospect of good results from the Supreme Court as currently constituted, but Kavanaugh represents the last best hope for less bad outcomes.

Marcus and Noah Feldman hold Kavanaugh in very low regard. They view him as a craven jurist, who will modify his decisions to receive plaudits from elites. They also view him as a political actor, who will modify his decisions to help Republicans in the election.

May I offer some free advice for the Brett Kavanaugh fan fiction club? Stop saying aloud what you really think. The well-worn playbook you used against Justice Kennedy will not work against his replacement. This despicable, demeaning rhetoric, will only fortify Justice Kavanaugh's resolve to follow the law, and not be swayed by self-serving advocates.

NEXT: Dr. Braid Checked For Cardiac Activity Before Performing The Abortion

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  1. > that kind of acceptance is no longer available to him.

    Really? No one I know believed a word Ford said. Especially the part about being gang-raped at parties half a dozen times — if it were true, why’d you go to the second one?

    1. When did she say that she was assaulted more than once?

      1. Ruth Marcus, Ivy indoctrinated scumbag lawyer. Dismissed.
        If this analysis were handed in as a high school assignment, it would be returned for more substance to avoid an F.

        1. She should stick to making matzah balls and stfu.

      2. That wasn’t Ford, it was the next nutcase that tried to pile on. Ford’s story at least didn’t contradict itself – it only lacked all details needed to check it, and seemed more like something vaguely imagined under hypnosis than a real event. (It would also fit an outright lie that had been carefully tailored to avoid any chance of being disproven by an alibi or witnesses.)

        1. None of the people she claimed were at the party corroborated it and there was never even a shred of evidence showing she ever met Kavanaugh. And she was the most credible accuser lol. Which just shows what a joke the entire thing was.

          And people still had the audacity to get all pissy because he had an emotional reaction to being labeled a gang rapist.

          1. I don’t think two people is a gang.

        2. Actually Ford’s story did contradict itself.

          1. Ford’s letter to Feinstein says there were five people at the house, then she wrote a statement in connection with a highly unusual polygraph test that there were 6+ people.

          2. Ford’s letter to Feinstein says she was pushed by 1 person, Kavanaugh, then later she wrote 2 people.

          3. Ford’s testimony was that the assault happened in 1982, which conflicts with her therapist’s notes and with what she told the Washington Post.

          4. Ford changed her description of the house’s layout after investigators produced evidence that undermined her account.

          5. Ford backtracked on the location being near the country club after investigators produced evidence that undermined her account.

          Of course there are a lot of other ways in which the evidence contradicts Ford’s story, as well. For example, she claimed she couldn’t fly due to fear of flying when evidence indicates she was just recently flying. Her ex-bf testified that she had counseled people on polygraphs which contradicts her testimony. She testified that she never told anyone about this for 30 years, until prompted by home renovations and the need for a “second front door” to feel safe, when evidence indicates that second door was installed 4 years prior and was used as access for other tenants. Not to mention, of course, that all the other witnesses, including Keyser, deny her story. That’s just the tip of the iceberg.

          By the way, Ford’s attorney stated that protecting abortion rights is “part of what motivated Christine.”

    2. “no one I know.”

      Wanna think about that? Maybe google “selection bias?”

      1. “that kind of acceptance is no longer available to him.”

        Maybe fight selection bias with selection bias.

    3. “Unlike some of his conservative colleagues, he enjoyed being part of, and respected by, the legal establishment; teaching at Harvard Law School was important to him. In the aftermath of Christine Blasey Ford’s testimony, and Kavanaugh’s intemperate outburst, that kind of acceptance is no longer available to him.”

      So, are the people you know part of “the legal establishment”?
      Not inviting him to collections of useful contacts doesn’t necessarily imply belief in anything said about him, just that you don’t want “Unclean! Unclean!” directed at the two of you.

      And then there’s the un-ironic “Kavanaugh’s intemperate outburst” bit.

      I don’t recall Ford alleging multiple rapes, btw. What are you smoking?

      1. Well of course he is conflating the Blasey-Ford allegations with the Swetnick-Avenetti absurdity.

        It’s somewhat hard to separate them at least based on plausibility.

    4. Especially the part about being gang-raped at parties half a dozen times — if it were true, why’d you go to the second one?

      You are apparently confusing Christine Blasey Ford and Julie Swetnick.

  2. So she’s taking Kavanaugh on a high mountaintop and offering him…all the cocktail parties of the earth.

    1. It looks like it worked on Roberts.

      I don’t share Blackman’s confidence that it won’t work on Kavanaugh.

  3. TRAP laws have done what Republican presidents via the Supreme Court failed to do…so now it’s best if the Supreme Court overturns Roe and allows the dog catch the car.

    1. “TRAP laws”? Sorry, I don’t know that acronym. Clarify please?

      1. Targeted Restrictions on Abortion Providers.

  4. “May I offer some free advice for the Brett Kavanaugh fan fiction club? Stop saying aloud what you really think.

    This despicable, demeaning rhetoric, will only fortify Justice Kavanaugh’s resolve to follow the law.”

    Seems like bad advice. Wouldn’t everyone want Kavanaugh’s resolve to follow the law fortified? Is more fortification to follow the law ever a bad thing?

    Unless his resolve is already ultimately fortified, in which case the blackman kid’s advice would have no effect.

    1. “Wouldn’t everyone want Kavanaugh’s resolve to follow the law fortified?” No.
      “Is more fortification to follow the law ever a bad thing?” Absolutely. Of course. Suppose you wanted the eviction moratorium upheld. Then following the law is a very bad thing indeed.

    2. Josh’s otherwise puzzling behavior makes sense if he is anti-abortion, and not just at the “signalling tribal allegiance” level: By publicizing the Marcus article in a prominent law blog, Josh increases its chance of “fortify[ing] Justice Kavanaugh’s resolve to follow the law,” I.e. to strike down Roe.

  5. Justice Kavanaugh can both “follow the law” and “refrain[ing] from outright abandonment of constitutional protection for abortion rights.” He does this by reaffirming Roe/Casey but only for states that do not recognize the fetus as a person or citizen under state law. See https://www.supremecourt.gov/DocketPDF/19/19-1392/192609/20210916131541917_41445%20pdf%20Hawks.pdf

    1. A compromise to split the baby, as it were?

    2. “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”

      Fetuses are neither born nor naturalized.

      1. So they’re not citizens.

        Personhood doesn’t depend on citizenship.

        Zaireans and Britons aren’t citizens of the United States, but that doesn’t mean you can legalize the killing of innocent Zaireans and Britons.

        1. I never said you could. Correcting error doesn’t imply any position of the underlying argument, even if the one corrected is your pal.

          1. He’s not my pal, I just didn’t see his citizenship comment. Now that I have the context, they can relocate my comment to a more appropriate context.

      2. So they’re not citizens.

        Personhood doesn’t depend on citizenship.

        Zaireans and Britons aren’t citizens of the United States, but that doesn’t mean you can legalize the killing of innocent Zaireans and Britons.

      3. That gives a sufficient condition to be a citizen. It’s not a necessary condition; someone born outside the United States, and who has never lived inside the country, can still be a citizen.

    3. But there isn’t any “constitutional protection for abortion rights“, there’s protection for privacy, and abortion is merely being legally permitted because it lies under the shadow of the right of self-determination. The left doesn’t seem to realize how thin the ice has become. Every vaccine mandate, lockdown directive, and capture of safety regulation undercuts privacy and self-determination. “Keep your laws off my body” is even now completely contradicted. Fast-forward several years, and the right to privacy will be pretty much gone, IMHO.

      Wither Roe, then?

      1. Abortion will always be defended with special pleading by the schizoid left. They have never grown out of Margaret Sanger’s eugenics and racism.

  6. “Kavanaugh intemperate outburst.”

    Yes, how dare he be perturbed at being falsely accused in public of sexually assaulting someone.

    1. Not “perturbed” — more like “being a snotty little spoiled shit” who thinks he can bully a U.S. Senator as if he was at a drunken frat party.

      1. Please explain how he “bullied” a U.S. Senator?

        1. Tried to bully. Sniping at Klobuchar during the hearing. She should have said, “How dare you, you little shit!”

          1. She asked an inappropriate question about his drinking. He should have called her a dumb menopausal c***.

            1. Jim Klobuchar, her father, was a local reporter and has written several books. He was a recovery alcoholic, arrested several times for drinking and driving. He was drunk at Senator Klobuchar’s high-school and college graduations.

              The point is that she has been around someone who struggled with alcohol, had likely blacked out from time to time, and probably worked to cover up what happened when he drank too much. You may not like her asking the questions, but when I considered her background, they made a lot of sense for her to ask.

              1. And? No she doesn’t get to ask leafing questions implying he has a drinking problem all because daddy was a drunk. It doesn’t work that way. It never will work that way.

                  1. It was hardly “leading”. He admitted to drinking (which is not a damning admission). She asked if he’d ever drunk so much that he didn’t remember what happened the night before. A perfectly natural follow up.

  7. Wow. The Marcus column isn’t even original. It’s just a limp-dick version of the Nina Burleigh argument.

  8. “Fan fic” that explains a whole lot regarding the left in this country.

    1. Who are you kidding? It explains a whole lot regarding all people in this country.

      I mean, just look at republicans’ response to Covid and belief that the election was stolen from them.

  9. It’s so gratifying to read lawyers defending other lawyers, and so relevant to the cause of liberty.

    1. The Volokh Conspiracy is at Reason but not of Reason. Different mission.

      1. It is striking that a bunch of law professors tossing red meat to superstitious, bigoted, pandemic-denying, climate change-denying, election fraud-steeped, birther-class, right-wing readers choose a site called “reason” for publication of their fairy tales, dogmatic intolerance, and conspiracy theories.

        1. You are on a roll sir..screw you I’m going home

          Eric Cartman

  10. and Kavanaugh’s intemperate outburst

    This, by the way, was taken from the Clarence Thomas hearing playbook, but it didn’t work nearly as well.

    1. I always loved seeing morons whine that the dude got emotional after being publicly accused of being a gang rapist based on super flimsy evidence. How dare he!

      1. I know. Can you imagine if the Republicans had, say, run around claiming that Ginsberg had gotten her nomination from Clinton in exchange for sexual favors?

        I can see the Marcus types now: “Gee, regardless of the veracity of the allegations, Ms. Ginsburg’s response to being called a whore by the Republicans was terribly intemperate. She just doesn’t have the temperament to be a SCOTUS justice.

        1. Not long ago, a much lesser besmirching of character would frequently result in a duel.

  11. Most people are a sucker for flattery, Josh not being an exception.

  12. This despicable, demeaning rhetoric, will only fortify Justice Kavanaugh’s resolve to follow the law, and not be swayed by self-serving advocates.

    Blackman, you are a goofball.

    1. Josh Blackman is the future of conservative legal academia.

      I thank the Volokh Conspiracy for providing exposure of unvarnished conservative thinking to a broader-than-usual audience (outside the standard Federalist Society-Red State-Free Republic-Fox-Stormfront-Instapundit-Newsmax-Hot Air-Gateway Pundit context) .

  13. Always good to see contempt and distain for the Washington Post. They, and their believers, deserve all that can be provided.

    1. Yeah, with a $2.9B market cap, that’ll teach ’em.

      1. You have to wonder about that..who the hell is buying the WAPO? Deep State, Neocons (I mean where else can you get “conservatives” like Max Booth and Jennifer Rubin)…its like the NYT…opps well there you go..

  14. ‘Give in to partisan spite, it’s the best guide to what the real law is!’

    1. “Partisan spite” is exactly what Democrats turned Kavanaugh’s confirmation hearings into, and giving into it is exactly what this post argues against.

      Or was that meta-sarcasm?

      1. Stay on topic. Whatever you think about the hearings, Blackman’s counsel here is to build a jurisprudence around owning the libs.

        Really explains a lot about his ‘sober objective’ takes.

        1. Was this post written by Blackman, or was it spit out by an AI Blackman parody creator*?

          ….I honestly can’t tell anymore for most of them.

          *Put in article by someone else. Assume worse possible motivation. Claim other person is doing what you normally do (mis-state the law, take quotes out of context, write Supreme Court fan-fic). Assume motivations for the Supreme Court that you know nothing about. Try to own the libs while owning yourself.

          1. ‘Give in to partisan spite, it’s the best guide to what the real law is!’

            Put in article by someone else. Assume worse possible motivation.

            Shitlib pundit writes a partisan-motivated article, shitlib commenters get butt-blasted over someone pointing that out.

        2. Nope if you’re gonna whine about partisan spite bringing up democrats spiteful behavior towards Kavanaugh is fair game, sorry kiddo.

  15. The main problem is that Marcus and Feldman are not wrong, lol. The well worn playbook used against Kennedy will totally work against Kavanaugh (and Roberts), and it already has.

    One might hope Kavanaugh learned from the CDC moratorium debacle, but I doubt it. Roberts has not learned from all his debacles trying to appease people.

    1. They’re part of the Washington elite. They don’t understand why middle America hates them.

      1. You don’t speak for middle America though.

        You don’t seem to speak for much, other than chiming in to say Dems bad.

        1. You don’t seem to speak for much, other than chiming in to say Dems bad.

          It’s not like there isn’t a wealth of evidence for that.

  16. Honestly anyone who still thinks Kavanaugh is guilty is just stupid at this point. There isn’t even any evidence he ever met Christine Blasey Ford and she is seen as the most “credible” of the accusers. Which should tell you something.

    1. Some people are stupid, Chest Rockwell.

      Other people are gullible, dumb, superstitious, bigoted, stale-thinking losers. We call them conservatives and Republicans.

      1. Some people are stupid, Chest Rockwell.

        Arthur L. Hicklib speaks from experience.

      2. Who is “we”? You and your imaginary friend?

  17. Jewish liberal/neocons have an unhealthy support for war and abortion…its an interesting dynamic and perhaps someone can explain. I guess it goes back to Eastern European traditions?

    1. There is an explanation, but it’s pretty technical. I’ll write it slowly, so you can keep up: FUCK YOU

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