The Kavanaugh Nomination: Trump Selects A Robertsesque Nominee

KavanaughFinal-640x367
Whitehouse.gov

Below is my column in the Hill newspaper on the nomination of Brett Kavanaugh to replace retiring Associate Justice Anthony Kennedy.  It seems likely that Kavanaugh will be confirmed absent some earth-shattering disclosure in the confirmation process.

Here is the column:

With his nomination to the Supreme Court, Brett Kavanaugh has once again walked into a defining moment of history. Once called the “Forrest Gump of Republican politics” by Sen. Dick Durbin (D-Ill.), Kavanaugh has a curious tendency of popping up whenever the country seems poised to make momentous changes, from the Whitewater investigation to the Clinton impeachment to the Florida recount in the 2000 presidential election. Now with the balance of the Supreme Court teetering by one vote, Kavanaugh is again in the middle of the fray.

Kavanaugh’s ubiquitous appearances in history, however, are the only comparisons to the movie character. He is smart, disciplined, and would be reliable as a conservative member of the court. Indeed, his nomination may be the most predictable ever. He has long been viewed as someone actively groomed for the court by supporters in the Federalist Society and conservative legal circles. Short of being raised hydroponically in the basement of the Federalist Society, he could not be more carefully constructed as a nominee in waiting. He has, literally, spent decades being developed within conservative circles for this moment.

That long association with the D.C. legal establishment is also the curious element of this nomination. The Supreme Court justice that Kavanaugh most resembles in both career and philosophy is Chief Justice John Roberts, who you may recall, was once described by Donald Trump as a “disaster in terms of everything we stand for.” (Kavanaugh was credited by George Bush with convincing him to select Roberts over options like Samuel Alito to replace William Rehnquist.)

Kavanaugh also was not the safest bet for this nomination. The easiest option would have been someone like Thomas Hardiman, who repeatedly has been on the short list for his conservative but largely uncontroversial record. (Hardiman holds the unenviable position as an “always the bridesmaid never the bride” candidate for the court.) Kavanaugh, in contrast, comes with baggage from his long career threading through our nation’s greatest controversies. He has written more than 300 opinions and carries a huge record in the executive branch that will make the expedited confirmation schedule challenging to fulfill.

However, Kavanaugh is likely to be confirmed and to place maximum pressure for a “yes” vote on Democratic senators in purple states like Heidi Heitkamp of North Dakota, Joe Donnelly of Indiana, Claire McCaskillof Missouri, and Joe Manchin of West Virginia. He is the perfect wedge nominee to put these senators at odds with the conservative and independent voters they will face in their midterm reelection bids.

Kavanaugh would make an immediate impact on court. He is a critic of the rise of the “fourth branch” — the bureaucracy — and the deference given to federal agencies. He will join Justice Neil Gorsuch with well-articulated and principled opposition to the increasing independence and authority of federal agencies. On the seminal case of Chevron v. Natural Resources Defense Council, where the court expanded the discretion of those agencies, Kavanaugh is clearly ready to reexamine its precedent, having written: “So Chevron itself is an atextual invention by courts. In many ways, Chevron is nothing more than a judicially orchestrated shift of power from Congress to the executive branch. Moreover, the question of when to apply Chevron has become its own separate difficulty.”

Where libertarians are likely to feel most uneasy about Kavanaugh is his deference to executive power in the president. There is a subtle contrast in his jurisprudence on such deference. Although he has sharply criticized agency authority, he has shown the opposite inclination about inherent presidential authority. That was the case in his concurrence in Klayman v. Obama, where the D.C. Circuit refused to hear a case challenging the secret National Security Agency metadata collection program.

Kavanaugh went beyond his judicial colleagues to not only argue that such metadata did not constitute a search under the Fourth Amendment but that, if it were a search, it was still constitutional because the government had a “special need” in preventing terrorism. That view could sweep away core privacy protections anytime a president declared that government surveillance was needed to combat terrorism.

However, he has Robertesque tendencies. Notably, some conservatives oppose him due to his vote upholding ObamaCare. There was another case that should comfort liberals and worry conservatives. In Sissel v. Department of Health and Human Services, Kavanaugh joined his colleagues in rejecting a challenge to the individual mandate under the origination clause, which requires that a bill raising revenue must originate in the House. The Senate routinely guts the clause by taking a House bill, deleting the content, and then inserting entirely new text while claiming that it is the bill because the number did not change.

It infuriates textualists and undermines the important function of the origination clause. Kavanaugh went out of his way to say that he not only supported the denial of an en banc, or full court, review in the case but wanted to “rule for the government on the ground that the Affordable Care Act originated in the House.” Notably, that challenge was supported by Ted Cruz and John Cornyn, who will now vote on Kavanaugh.

Kavanaugh is clearly worthy of this nomination based on his record and his intellect. He will bring considerable depth to the court, but he also will bring considerable change in many areas. He is likely to depart from Justice Anthony Kennedy, for whom he clerked for on the court in the 1990s, on the use of race in college admissions, detainee rights, the death penalty, and other areas currently shaped by 5-4 votes.

Finally, there is abortion. Kavanaugh is someone who clearly does not subscribe to the logic of Roe v. Wade and is likely, at a minimum, to curtail that precedent in its restriction of state legislation. However, he still meets the Susan Collins test on this. Even though everyone on the short list is widely believed to be hostile to Roe, the Republican senator is not requiring a nominee who will not overturn or gut Roe. Rather, she is demanding, as she did with Gorsuch, someone who will not say publicly that they wish to do so. As Collins told CNN recently, she will not vote for anyone “who demonstrated hostility to Roe v. Wade” and will only vote for a nominee who says that “they respect precedent.”

It is hard to imagine a nominee saying they do not respect precedent. It is a lot like walking in and refusing to take the oath because you do not want to limit your options. Like Roberts, Kavanaugh is a buttoned-down witness who is unlikely to give Democrats much of an opening in his confirmation hearing. Collins wants plausible deniability, and Kavanaugh will provide it. There is a difference in knowing something and proving something. Forrest Gump famously said that “life was like a box of chocolates. You never know what you’re gonna get.” We know exactly what we are going to get with Kavanaugh, but Democrats will be hard-pressed to prove it.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.

65 thoughts on “The Kavanaugh Nomination: Trump Selects A Robertsesque Nominee”

  1. NEW GALLUP POLL:

    64% OF AMERICANS WANT ROE V WADE TO STAND

    Nearly two-thirds of Americans do not want to see Roe v. Wade overturned, according to a new poll.

    Sixty-four percent of those surveyed said the 1973 decision that legalized abortion nationwide should stand, according to a Gallup poll released Thursday. That is up 11 percentage points from 53 percent in 2012.

    The Roe v. Wade decision made its way back into the news after the retirement of Supreme Court Justice Anthony Kennedy — which gave President Donald Trump the opportunity to nominate a new justice.

    Trump said on the campaign trail that he would nominate only judges who oppose abortion rights. On Monday, he nominated D.C. Circuit Judge Brett Kavanaugh, who has, over a decade, favored compromise in cases on abortion and Obamacare.

    The president said he did not ask Supreme Court candidates about Roe v. Wade.

    Twenty-eight percent of respondents in the Gallup poll say the ruling should be overturned, down 1 percentage point from 2012. Nine percent said they have no opinion.

    The results showed partisan differences: Eighty-one percent of Democrats are against overturning Roe v. Wade compared with 41 percent of Republicans.

    Edited from: “Poll: 64% Of Americans Want Roe V Wade To Stand”

    Today’s POLITICO

  2. all in all a really mild and appropriate pick who will be confirmed easily even though mad maxine and other goofs will make fools out of themselves protesting him

    1. Wagers no. McCain will do what he can to sink him as a concluding FU. Then you’ve got your careerists, Susan Collins (R-Me) and Sleaza Murkowski (R – Her Daddy). Rob Portman will subcontract the decision to his pooftar son.

      1. Turley says that Manchin might confirm Kavanaugh, if Kavanaugh pledges to preserve the tax that’s supposedly not a tax in the ACA–except that Kavanaugh says it is a tax. Turley also says that Heitkamp might defect for reasons that Turley failed to specify other than representing a purple state. If so, then, yeah, McCain’s swan song 2.0.

  3. When did Roberts sign off on the following:

    “President Clinton endeavored to obstruct justice during the grand jury investigation by refusing to testify for seven months and lying to senior White House aides with knowledge that they would relay the President’s false statements to the grand jury — and did thereby deceive, obstruct, and impede the grand jury.

    President Clinton abused his constitutional authority by (i) lying to the public…….refusing six invitations to testify voluntarily to the grand jury”

    Lying to your staff and lying during a press conference is obstruction of justice (not to mention that “failure to testify” voluntary means you didn’t testify voluntary?) Bwa ha ha ha ha ha ha ha ha! You better lock up every politician in the whole town.

    He (Kanavaough) now says he made a mistake by the way. So anyone who claims he didn’t screw up doesn’t have a leg to stand on.

  4. When did Roberts sign off on the following:

    “President Clinton endeavored to obstruct justice during the grand jury investigation by refusing to testify for seven months and lying to senior White House aides with knowledge that they would relay the President’s false statements to the grand jury — and did thereby deceive, obstruct, and impede the grand jury.

    President Clinton abused his constitutional authority by (i) lying to the public…….refusing six invitations to testify voluntarily to the grand jury”

    Lying to your staff and lying during a press conference is obstruction of justice (not to mention that “failure to testify” voluntary means you didn’t testify voluntary?) Bwa ha ha ha ha ha ha ha ha! You better lock up every politician in the whole town.

    He now says he made a mistake by the way. So anyone who claims he didn’t screw up doesn’t have a leg to stand on.

  5. KAVANAUGH IS RELATIVELY POOR

    HAD CREDIT CARD DEBT FROM BASEBALL TICKETS!

    Yesterday, around mid-afternoon, The Washington Post ran an odd story reporting that Kavanaugh had accumulated tens of thousands in credit card debt from numerous transactions involving tickets to Washington Nationals baseball games. Said report was attributed to a White House source. Report went on to note that Kavanaugh is surprisingly poor for a man of his position.

    Here are the opening paragraphs of that story:

    “Supreme Court nominee Brett M. Kavanaugh incurred tens of thousands of dollars of credit card debt buying baseball tickets over the past decade and at times reported liabilities that could have exceeded the value of his cash accounts and investment assets, according to a review of Kavanaugh’s financial disclosures and information provided by the White House.

    White House spokesman Raj Shah told The Washington Post that Kavanaugh built up the debt by buying Washington Nationals season tickets and tickets for playoff games for himself and a “handful” of friends. Shah said some of the debts were also for home improvements.

    In 2016, Kavanaugh reported having between $60,000 and $200,000 in debt accrued over three credit cards and a loan. Each credit card held between $15,000 and $50,000 in debt, and a Thrift Savings Plan loan was between $15,000 and $50,000.

    The credit card debts and loan were either paid off or fell below the reporting requirements in 2017, according to the filings, which do not require details on the nature or source of such payments. Shah told The Post that Kavanaugh’s friends reimbursed him for their share of the baseball tickets and that the judge has since stopped purchasing the season tickets”.

    Edited from: “Supreme Cour Nominee Brett Kavanaugh Piled Up Credit Card Debt By Purchasing Nationals Tickets, White House Says”

    THE WASHINGTON POST, 7/11/18

    1. FROM SAME ARTICLE:

      KAVANAUGH’S ESTIMATED WEALTH

      “Kavanaugh’s most recent financial disclosure forms reveal reportable assets between $15,000 and $65,000, which would put him at the bottom of the financial ranking of justices, most of whom list well over $1 million in assets. The value of residences is not subject to disclosure, and Shah added that Kavanaugh has a government retirement account worth nearly half a million dollars that also was not required to be disclosed”.

      1. so what? you picking on him because he’s not some hotshot biglaw high dollar silkstocking solicitor? i dont get it

    2. The usual liberal suspects in the Washington Post comment space seem divided as to whether the money Kavanaugh placed on his credit card for those tickets was a transaction driven by a gambling problem, or that he was compensated for those tickets not by his friends, but the shadowy (fill in the blank) who are continually seeking to pervert jurisprudence at the Federal court level.

      And (as is usual for the Washington Post>/i>) the actual lede of the article, that thing which ought to be at the broad part of the “inverted pyramid” of a news article, at the top of the article is that Brett Kavanaugh has assets in excess of his financial liabilities and has been living on his salary all his professional life.

      Facts do not a good hit piece make, so the Washington Post>/i> distorted them to give their readers an emotional hook on which to hang any qualms they may have regarding Judge Kavanaugh.

      1. The Wa Po story was very matter of fact in noting that Kavanaugh never had a high salary, private sector job. To call the story a ‘hit piece’ is merely sour grapes. Odd spending habits are certainly relevant for a SCOTUS nominee.

        1. Gee, your usual line is that Barack Obama was eminently qualified to supervise a 3.5 million man bureaucracy having sashayed through generic public sector positions for a dozen years.

          Odd spending habits are certainly relevant for a SCOTUS nominee.

          Mr. Kurtz has been busy defending prostitution and strip joints. Maybe you to could have a colloquy.

          1. I think Steven Sailer published an assessment of some of Barack Obama’s financial disclosures some years back. Sailer’s take was that what you notice is that their revolving debt just keeps growing until sales of The Audacity of Mope take off.

        2. odd but if you compare them to the average american who carries a lot of cc debt not so odd i think. a legitimate inquiry but i think nothing of it.

    1. Her name was Norma McCorvey. She was a straw plaintiff. She later regretted her involvement in the whole business. Not sure the identity of Doe in Doe v. Bolton has every been revealed.

    2. I take it Roe was a name like Doe which is a common name used in pleadings to indicate a party whose identity is unknown, or may be shielded under some confidentiality law.

  6. Regardless of how it is explained by the legal experts, commenting on what the Supreme Court is supposed to do or not do, ultimately decisions are made that reflect the will of the people, after the people have consistently expressed themselves, and typically where the issue directly concerns the people’s rights and freedoms. Row versus Wade was an expression of the public majority. It dealt clearly with the individual rights of women-Constitution/Bill of Rights, and the majority will of the people. The chicken sh*^ approach to this would have been to defer the issues of abortion to the states. This chicken sh*^ approach was what Scalia did with the issues of gun regulations when that came up.

    There is a noticeable area of sway where judges lean. Scalia gave the individual rights of existence to corporations because otherwise he would be dealing with oligarchical pressure but primarily because it is not seen as an issue that directly affects the lifestyle of the individual citizen. Scalia gave the issue of gun regulation over to the states because he was a gun nut and oligarchical pressure. If there was an oligarchical interest in abortion, Row versus Wade would be either repealed or given over to the states. As it stands using Scalia’s gun regulation dance, abortion will probably be given over to the states, the chicken sh*^ dance. It will be a political bone, thrown to jumpers as well as progressives.

    One of the issues where Kavanaugh may be expected to dance to the political tune of his master is Presidential authority and protection from being pursued for crimes while in office. It has little to nothing to do with the average citizen’s rights or freedoms. It focuses on what sausage making has become about, power. For the most part in the US system of ‘self governance’ the oligarchy buys the representatives to protect their special interests first. The ideological power struggle is secondary as it is the tool that allows the voter to believe that they actually have a say. When the leader of the majority Congress can openly state that regardless of whether or not something is good or bad for America, if it comes from the Obama White House, it will be voted down; when the Supreme Court is left at a disadvantage/neutered with only 8 judges for almost a year, when politicians openly state that if one side can play this or that game then they can play this or that game, it is all about power, the power of those bought and sold by the oligarchs, in other words the power of the oligarchy. Typically where it all gets lost is in the legal self gratification. A lawyer, and/or a judge can argue white is black. Perhaps a ‘check and balance’ plebiscite tool is what is needed. If Roe versus Wade is about an issue(s) that comes under the nation as a whole, ie the Constitution and/or the Bill of Rights, then the people as a nation should vote on it. The Truer Democracies and Republics utilize the plebiscite.

    1. And if we were Switzerland, with a stable cantonal system in which most matters were left to the cantonal lawmakers and only Federal matters reached the nationwide plebiscite, that’d be great. It helped them dodge a bullet where SAAB Gripen ES fighters were sold to them with both an inflated per-aircraft price and a high cost for recurring maintenance well beyond that SAAB advertises for the Gripen. Just think, if we’d had the same ability to all have a think about the F-35 program, the F-22 program, and all the money NASA and Lockheed Martin threw down rat holes NOT replacing the Space Shuttle.

      But even in that case, the plebiscite can’t be relied on to weigh individual rights versus state power. Too much chance we’d get more of what we already have, hysterical abridgement of civil rights based on media campaigns and not the Constitution, It wouldn’t correct our current problems with too much bad law – it’d probably make them worse.

      1. In a democracy the plebiscite gets to do exactly that all the time or they would not have much to vote upon. Anytime a tax or regulatory scheme is passed the democratically elected representatives are acting on behalf of the plebs taking stuff. That is a democracy and in our system the SCOTUS gets to decide when they are going to cancel a law as unconstitutional or not. It is what it is.

        It is not very democratic when it comes to social matters that have been legislated from the bench such as gay rights marriage, abortion rights, and desegregation. But if the legislatures are taking stuff in taxes and all that, the SCOTUS says go right ahead.

        America is a lot less democratic than people realize. Mostly that is just a slogan to gin up support for wars

  7. “Kavanaugh is clearly worthy of this nomination based on his record and his intellect.”

    Based on his record of having lied to a U.S. senator, and his lack of respect for precedent, he’s a good candidate for being another Justice who’ll put politics and fealty to the 1%’s desires above all else.

  8. “ Even though everyone on the short list is widely believed to be hostile to Roe, the Republican senator is not requiring a nominee who will not overturn or gut Roe. Rather, she is demanding, as she did with Gorsuch, someone who will not say publicly that they wish to do so.”
    ******************
    Roe was bad jurisprudence but good policy which means it should have been decided in the legislature not the courts. The SCOTUS used pretzel logic to magically discover the “right” and then declare it Law. It polarized the nation and gave credence to the notion that if you can’t pass the bill in the legislative branch you can still run to Daddy SCOTUS and get what you want with no appeal. Nine old men and women have no business deciding for eternity on controversial social policy with no recourse by the populace. It cheapens democracy and the court.

    1. No, it’s bad jurisprudence and horrendous policy. (And, btw, you’d really have to scrounge to locate an occidental country with an abortion regime as gruesome as the one designed by Mr. inJustice Blackmun).

    2. MESPO: Roe was not that divisive at first. Nixon and Ford were okay with it. Roe only became a major issue when Reagan pandered to the so-called Christian Right in 1980. And they just happened to be disgruntled White southerners.

      1. MESPO: Roe was not that divisive at first. Nixon and Ford were okay with it.

        One of Nixon’s campaign jabs in 1972 was to call George McGovern the candidate of ‘acid, amnesty, and abortion’. Ford most certainly was not and was quite explicit that the matter was one for state discretion. Edward Kennedy was not at that time (at least for public consumption). Jimmy Carter wasn’t on board with specific features of it. The agitation against it was immediate. See Ellen McCormack’s work in New York, and Barbara Keating’s 1974 U.S. Senate campaign in New York as well. If you don’t know what you’re talking about, shut up.

        1. Hey Spastic: Show me articles from mainstream sources saying that Roe was a highly charged issue in the midterm election of ’74, The ’76 Presidential Election, or the midterms of ’78. Because I’m old enough to remember all those elections. Roe was ‘not’ that big of an issue.

          1. Because I’m old enough to remember all those elections. Roe was ‘not’ that big of an issue.

            You weren’t reading the papers, ergo it didn’t happen. You run out of talking points, you start to sound like Geezer Benson.

            Barbara Keating won 16% of the vote as a 3d party right-to-life candidate in New York. You can start with that. The National Right to Life Committee was incorporated in 1973. Everett Koop and Francis Schaffer began their collaborative work in 1975. The Hyde Amendment was enacted in 1976.
            And yes it was a matter of controversy in the 1976 election, along with a number of other issues. It was also a matter of controversy during the early Carter Administration, when you had militants on the White House staff throwing hissy fits over the President’s public statements on the matter.

            And they just happened to be disgruntled White southerners.

            So what?

            1. The 1974 Midterm elections was one of the biggest blue waves ever. For the rest of the 1970’s Congess was safely Democrat. Abortion played no major role in Ford-Carter race of 1976.

              Furthermore much has been written on how School Busing (as a desegregation scheme) seemed to be the real catalyst for Anti-Abortion forces; hence ‘disgruntled Whites’.

              1. Abortion played no major role in Ford-Carter race of 1976.

                Sorry, you’re just lying. It wasn’t the exclusive issue, but it was an issue.

                In re 1974, it was also not the only issue on the table. You had the usual cyclical patterns, to which were added economic stressors and the humiliation of the Republicans in re the Watergate scandal. Also, neither political party had a uniform position on the issue, and in New York in particular they often switched sides. The impetus for 3d party candidacies in New York was that the Rockefeller-era Republican Party was commonly awful on this issue. My local Republican state senator was knocked out in a primary in 1972 because of that. Gov. Wilson, however, was pro-life.

                If you actually had been paying attention in 1974 and 1976, you’d know that.

                1. No, said article traces a liberal’s gloss on a social movement they wish didn’t exist.

                  Even prior to Roe v. Wade, efforts to lower or eliminate criminal penalties for abortion were intensely controversial and usually failed. Over a six year period, the advocates of it had succeeded in just four states, and in New York only just barely. Why do you think they wanted a resort to the judicial ukase? They were losing in legislatures.

                  I don’t know why you’re continuing to try to peddle this tripe, Peter.

                  1. Abortion rights in California were signed by none other than Ronald W. Reagan.

                    And the article clearly says the movement didn’t spring to life until 1979. And that about jibes with my memory. The early to mid ’70’s was generally a high-water point for liberal influence. The Baby Boomers were still young and the Women’s Movement was at full throttle.

                    SPASTIC IS PEDDLING TRIPE BY CLAIMING THAT ROE ROCKED THE COUNTRY FROM THE START

                    THAT TRIPE IS REVISIONIST HISTORY BY A RIGHT-TO-LIFE HYPOCRITE

                    If you want to claim “Right To Life” status, you’d better keep your Right-To-Life views consistent. You can’t cherry pick them the way most Republicans and Trumpers do.

                    You can’t say, “I’m strongly pro-life on abortion but.. I see no need for any gun regulations. Or, “I see no need for any national healthcare policy”. Or, “I see no need for the EPA”. Or, “I want to cut the social safety nets out of ideological spite”.

                    1. I don’t give a damn what the article ‘clearly’ says. The article is peddling a false thesis, and if you’d actually been keeping track as you claim, you’d know that.

                    2. Peter Hill,..
                      -Reagan expressed regret at signing that bill into law.
                      He seemed to think that the provision to allow abortion to protect “the life or health” of the mother was designed for to address a medical risk beyond the anxiety caused by an unwanted pregnancy.
                      It didn’t take long for an expansive interpretation of “health” to “open up the market” for widespread, and legal, abortions.

                    3. Tom, Reagan knew exactly what he was doing. Nancy was totally pro-choice and sentiment in California was totally pro-choice.

                    4. Nancy was totally pro-choic

                      Per the fantasies of Kitty Kelly and Sidney Blumenthal.

                    5. Spastic, I don’t think you remember the 70’s. You don’t seem to know that Republicans used to be more moderate. It’s like something you never heard before.

                    6. I remember the 1970s perfectly well and was a regular newspaper reader, well enough to know you’ve been talking out of your ass. The composition of the political parties differed from what it is today, because it was driven more by family history, ethnos, and class than it was by policy preferences or ideology (though policy preferences and ideology were a vector in the mix). The mentality of the Democratic Party was quite different than it was after 1980 as well, because Democrats still understood themselves as political competitors with the Republicans and the courtesy culture in Congress still maintained some vigor. Robert Bork, who dealt with Congress before and after 1980, has written about how the two time periods differs.

          2. Roe was a bone Carter threw to his Evangelical base in the 1976. I actually went to college with many Evangelicals who were painting Gerry Ford as the Pimp of Babylon because he’d been divorced, and rhapsodizing about Carter’s discomfort with Roe (which magically evaporated after the election along with the rest of Carter’s Evangelical platform).

            1. Gerald Ford was never divorced. It’s a reasonable inference that his marriage was canonically-invalid (which didn’t stop an Anglican vicar from solemnizing it), as Betty Ford’s memoirs have (IIRC) no text which indicates that an ecclesiastical tribunal reviewed her marriage to William Warren. Since evangelical congregations do not have a sacramental conception of marriage, I’m not why Betty’s situation was of interest to them.

    3. Judicial review is not democratic. But it is how our system works.

      Listen I hate to tell prolifers this but there is a lot of chicanery on abortion stuff.

      if the Republicans wanted to strip the SCOTUS of jurisdiction over abortion questions they could pass a law with a simple majority that would strip article III courts of jurisdiction of the issue. CONGRESS defines the jurisdiction of article III courts and they can strip it too.

      Really, that’s not a joke. That’s what I heard from a constitutional law expert professor maybe not as well known as Turley but tenured in a major university.

      I suppose the SCOTUS could try and strike down a law like that but how are they going to do it without rewriting the constitution? It might be an interesting constitutional crisis.

      Anyhow you try and explain this to a prolifer and it just really makes them sad so I kind of quit pointing this out a while ago because most of my friends are prolifers.

      Anyhow some of you experts can correct me if I am wrong I would love to think I have been all this time thinking this but it seems so to me.

  9. Kavanaugh’s an Ivy League, DC insider child of privilege which is exactly the resume of most Swanp Things. Maybe he’s different but that species varies little among its population.

    1. He has a pair of lawyer parents and had a comfortable suburban upbringing which included attending a private high school (made possible, in part, by having no siblings). Not sure his parents were in the segment of society where you can pull strings (at least during his youth – his mother was a judge when he was in his 30s).

      1. It’s about proximity to power and social status to get what you want. In the main, DC is a Potemkin Village inhabited by climbers. Why else would anyone fight that traffic everyday, wait in line (real or electronic) for everything from a restaurant to a hardware store and tolerate the tyranny of the soccer moms?

        1. No, it isn’t. There are over 4 million people in the dense settlement around DC. About 20% of the workforce are federal employees, and all but a few are people who have little influence over anything but what’s on their desk. Beyond the federal government, the principal oddity about the local industrial mix is lack of manufacturing. There is a crew of private sector enterprises who collect around politicians or public agencies: among them political parties, political action committees, political consultancies, lobbies, advocacy groups, fundraisers, advertising and public relations firms, and law firms with a ‘government relations’ practice. Washington being the federal capital, the media have an outsize presence. The thing is, these sorts of enterprises may be run by ticks whose names land in the papers, but they co not employ a large fraction of the local labor force.

          Kavanaugh’s father started out as an insurance salesman, then was hired to work on the staff of the Chamber of Commerce, then was hired as staff director of the trade association representing the manufacturers of cosmetics. I’d wager he did know people. Then again, maybe he spent his days being given the brush off. Kavanaugh’s mother was a local prosecutor, an occupation you find just about anywhere.

  10. JT stated, “Kavanaugh, in contrast, comes with baggage from his long career”

    Will here comes the baggage:

    1. Opponents of Brett Kavanaugh hope a MeToo link will derail Trump’s high court pick

    Opponents of Supreme Court nominee Brett Kavanaugh on Wednesday unveiled a new line of attack — questioning whether Kavanaugh, as a clerk to 9th U.S. Circuit Judge Alex Kozinski in the early 1990s, knew about Kozinski’s alleged sexual harassment of fellow clerks.

    2. Brett’s credit card debt

    In 2016, Kavanaugh reported having between $60,000 and $200,000 in debt accrued over three credit cards and a loan. Each credit card held between $15,000 and $50,000 in debt, and a Thrift Savings Plan loan was between $15,000 and $50,000.

    Kavanaugh’s “friends” reimbursed him for their share of the baseball tickets and that the judge has since stopped purchasing the season tickets.

  11. There is only one game in town, and that is the mode of governance. Are we governed by elected officials drawn various fractions of the bourgeoisie and subject to some influence from all strata of society, or are we governed by judges and regulators issuing orders which comport with what the New Class wants. Gelding the courts is crucial to a restoration of free and popular government.

  12. JT wrote that Kavanaugh will likely depart from Justice Kennedy on the issue of racial preferences in college admissions. I certainly hope so, and if that turns out to be the case it will likely be because Kavanaugh is of a different generation. He would have gone to college and law school with blacks who were children of professionals and legacy admits. There was a time when racial preferences may have been needed, but a half century later, it’s no longer reasonable or fair.

    1. never were reasonable or fair. and discriminatory as hell to whites and asians. fix it or it will catch up to the system eventually.

  13. Well the whole bit should follow

    President Trump was known as the Lotttery Candidate because while you weren’t quite sure how much the prize would be worth you knew for sure it wouldn’t be Hillary.

    With that in mind we built a whole sub rosa campaign around that and a few other phrase and they still work to this day.

    Life is also like a bowl of cherries but mine’s all pits. Zazu Pitts and of course the new classic Life is like a bowl of choclates…so on to business

    So far there have been some pits but the cherries are Grade A and the choclates are ABsolutes so here is the other spelling ChockOlates.

    I did notice though the former Dems are like SF Street People at least their conversation smells like 20 pounds of….

    On to the nominations. The President did the left a favor . Kavanaugh is the closest thing their ideas of acceptable they are going to get. That’s all they need to know. I mean to say at this point do they really matter?

    Yes…..because there is still a way to make major inroads in their strenth and cough cough coffers.

    Use Recall and Initiative.Let’s have 41,000 points of light that all have to be extinguished. And that takes money.

    There is no one at the national level so important they are worth losing major chunks of the states for. and when the cough cough coffers dry up fighting initatives and recalls the point will be driven home BY the locals in fly over country

    Meanwhile we keep building bit by bit. little by little and State by State using recalls and initiatives .

    What’s this got to do with Kavanaugh? It means win, lose, or draw we end up winning.After that it only gets easier especially if we get a few bolts from blue to red.

      1. Excerpted from the article linked above:

        In his dissent, Judge Kavanaugh argued that the court should not have heard the case in the first place, since the Anti-Injunction Act of 1867 forbids judges to rule on tax cases until the tax has already been collected. The individual health care mandate did not take effect until 2014 so, he wrote, plaintiffs sued prematurely and “the Anti-Injunction Act precludes us from deciding this case at this time.”

        He used a few hypothetical situations to address the plaintiffs’ argument that the individual mandate exceeds congressional authority. But he did not say whether he agreed with that argument, leaving room for interpretation.

        “I do not take a position here on whether the statute as currently written is justifiable under the Taxing Clause or the Commerce Clause,” Judge Kavanaugh wrote. “What I am saying is that the only potential Taxing Clause shortcoming in the current individual mandate provision appears to be relatively slight.”

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