Democratic Attacks On The Supreme Court Confuse Patterns of Principle with Politics

440px-Sheldon_Whitehouse_2010Below is my column in The Hill newspaper on the Kavanaugh confirmation hearing and the opening statement of Sen. Sheldon Whitehouse attacking the conservatives on the Supreme Court as a virtual ideological cabal.  I have always found Whitehouse an articulate and insightful member of the Congress.  He was not alone in these attacks.  However, I found the attack on the current justices to be unwarranted and distorted.  There is a tendency when you disagree with a decision like Hobby Lobby to conclude that the motivations of the justices must therefore be raw politics.  The possibility that the justices, including Justice Kennedy, are following a coherent jurisprudential view is dismissed in favor of partisanship.

Here is the column:

F. Scott Fitzgerald famously said, “The test of a first-rate intelligence is the ability to hold two opposed ideas in mind at the same time and still retain the ability to function.” If so, the start of the confirmation hearings for Judge Brett Kavanaugh this week displayed undeniable genius.

Indeed, Democratic Senator Sheldon Whitehouse of Rhode Island demonstrated just how nimble most members of Congress are in holding diametrically opposed positions without a whiff of self-awareness. He began his opening statement by asking, “When is a pattern evidence of bias?” It was meant to demonize the conservative majority of the Supreme Court as blind ideologues for voting together. This pattern, however, is equally found among Democratic nominees and their supporters.

Whitehouse described a voting pattern of a conservative cabal that he described as the “Roberts Five” of “Republican appointees” who “go raiding off together” and “no Democratic appointee joins them.” He noted his staff discovered that the five conservatives justices routinely voted together and thus displayed obvious bias. Why else, he suggested, would the conservatives vote so often as a five justice bloc?

It could reflect a common view of the law. Moreover, Whitehouse ignored the countervailing “pattern” of those four justices always found in dissent in the same 5-4 decisions. While the voting consistency of conservatives was treated as a vile demonstration of partisanship, the same consistency of liberals was treated as an inspiring demonstration of principle.

Putting aside Whitehouse’s own bias in identifying a pattern of bias, he, like many others, confuse principle with politics. We should want our justices to have consistent voting records based on their views of jurisprudence. The alternative is outcome driven justices who adopt conflicting interpretations to reach the “right” result. To their credit, liberal justices like Ruth Bader Ginsburg follow a consistent view of the Constitution, allowing for more evolutionary rights as part of a “living” Constitution. While this view certainly has many detractors over the fluidity and indeterminacy of the underlying rights, these justices have a reasoned and good faith foundation for their approach.

Despite Whitehouse’s refusal to acknowledge it, so do conservative justices. The “pattern” he finds in block voting reflects a consistent interpretation that is largely more textual and static. Both sides have had notable and suspicious departures in their approaches, but they largely adhere to long held jurisprudential approaches. Part of Whitehouse’s evidence was that “in 73 partisan decisions where there’s a big Republican interest at stake, the big Republican interest wins. Every. Damned. Time.”

Of course, many of these cases involve opposing views that would support traditionally Democratic interests. Every. Damned. Time. For example, Whitehouse pointed to the recent decision in Janus v. AFSCME,which overturned a 40-year precedent in Abood v. Detroit Board of Education. Abood was a boon for unions in requiring employees to pay a union despite objections to its activities or political campaigns. The decision in Janus also reflected a longstanding view of the First Amendment that such fees constitute compelled speech. That decision expanded protections for free speech. Likewise, Whitehouse cited “bonus decisions advancing far-right social agenda” like Burwell v. Hobby Lobby, which expanded First Amendment protections of free speech.

Whitehouse cited CNN legal analyst Jeffrey Toobin in declaring that “Roberts has served the interests” of the “contemporary Republican Party.” This statement, of course, ignores that the liberal bloc of the Supreme Court supports traditional Democratic interests in the same cases, from supporting mandatory union fees of nonunion members to the denial of free speech rights for corporations in political campaigns. Whitehouse and others simply dismiss any explanation for conservative voting patterns as the result of partisan or extremist ideology.

Whitehouse railed against how this “Roberts Five” majority was secured through secret funding of confirmation and electoral campaigns by groups “with dark money. The identity of the big donors? A deep, dark secret.” Once again, Whitehouse and his colleagues ignore the millions spent by liberal groups with “dark money” sources. Just as conservative groups identified by Whitehouse have funded the campaign in support of Kavanaugh’s nomination, liberal groups did the same to support Elena Kagan’s nomination and to oppose the Neil Gorsuch’s nomination.

The Washington Post details how Demand Justice, a group run by former aides to Hillary Clinton and President Obama, has spent millions to try to block the Kavanaugh’s confirmation by setting up shop within another nonprofit. This allowed it to mask both the names of its donors and their contributions. Likewise, Sixteen Thirty Fund raises unlimited amounts of money from undisclosed donors for distribution to liberal causes.

Like the voting pattern, the use of the same “dark money” corporations by the left are dismissed while conservative groups are demonized. Why? Because “they” are wrong and “we” are right. Democrats proved equally selective on the question of qualifications. Whitehouse denounced Kavanaugh as a “Republican political operative his whole career, who has never tried a case.” In doing so, he ignored the same lack of litigation experience by Kagan, who additionally had no experience as a federal judge, unlike Kavanaugh with 12 years on the bench. Yet, Whitehouse enthusiastically supported Kagan during her nomination.

Finally, Whitehouse denounced Kavanaugh’s use of “confirmation etiquette” as a “sham.” He demanded that Kavanaugh answer specific questions about his willingness to overturn cases like Roe v. Wade rather than “telling the committee fairy tales about stare decisis.” Yet, such “fairy tales” were happily accepted by Whitehouse and his colleagues when uttered by Democratic nominees. When asked about the case, Kagan replied, “I do not believe it would be appropriate for me to comment on the merits of Roe v. Wade other than to say that it is settled law entitled to presidential weight. The application of Roe to future cases and even its continued validity are issues likely to come before the court in the future.”

Whitehouse seems either blissfully unaware or willfully blind to the clear pattern shown by Democratic appointees. Since both parties show the same patterns, it does not constitute any evidence in distinguishing Republican from Democratic nominees. Ironically, one of the “Roberts Five” is retired Justice Anthony Kennedy, who has been praised by most Democratic senators for his independence and integrity. Kennedy was the “swing” vote not because the four liberal justices swung to him. The liberal justices remained just as fixed as the conservative justices. It was Kennedy who followed a principled path that occasionally took him to the left over concerns for due process or personal dignity.

However, Kennedy’s principled stands did not make his colleagues unprincipled. The four justices to his right and the four justices to his left simply held more unyielding jurisprudential views. You can disagree with those views without seeing a consistent approach as evidence of bias. In other words, what Whitehouse decried in the hearings is actually a pattern of principle on both sides of the Supreme Court.

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

203 thoughts on “Democratic Attacks On The Supreme Court Confuse Patterns of Principle with Politics”

  1. After watching these hearings I can say with near certainty that Sen. Cory Booker has not even a slight chance of ever becoming president. But he seems like a nice guy, so dream on Mr. Booker.

    Also can say that Sen. Kamala Harris has less personal appeal than a piece of sandpaper. Sitting through her questioning is worse than listening to someone drag their nails across a chalkboard. Keep testing the ‘presidential waters’ if you like, Kamala, but it ain’t ever gonna happen. No way.

    1. Booker has benefited from a contemporary reality which did not obtain 35 years ago: the press is an extension of every Democratic Party press office in the country. They don’t answer basic questions about him. It’s a reasonable inference about Booker that he never lived in the structure that he used as a voting address and that at least one of the two agencies that supposedly employed him prior to his election as mayor does not exist. New Jersey’s press corps put no effort into locating where he did live nor was he grilled about his yarnpulling, even when he said perfectly strange things that his opposition investigated (my favorite was his bizarre claim that he frequented all-night nail salons). And, of course, his record is hype. Robert Bowser implemented a fantastically successful crime control program in East Orange, NJ. Booker was a failure in this regard in Newark, though some metrics improved. The thing is, when you’re Mayor of Newark, public order and security should be Job 1.

      1. ” The thing is, when you’re Mayor of Newark, public order and security should be Job 1.”

        If he had done that all he would have done is made other Democratic urban areas look worse.

        1. If he had done that all he would have done is made other Democratic urban areas look worse.

          What are you talking about? There have been fine improvements in public order in the City of New York (which encompasses > 40% of New York’s metropolitan settlement) as well as a selection of New Jersey municipalities without corresponding deterioration elsewhere? What sort of alt-Right nonsense site have you been consulting?

          1. “What sort of alt-Right nonsense site have you been consulting?”

            DSS, I don’t know, maybe the ones you subscribe to.

            I wasn’t referring to NYC which markedly reduced violent crime especially under Guiliani. There are other cities in the country that have not fared so well. I think under its present mayor NYC is again turning in the opposite direction. I’m not sure of present statistics but sometimes they lag behind the stupidity of NYC leadership.

            1. No, there hasn’t been notable deterioration in NYC in the last four years. Nor can you discover deterioration in the 14 suburban counties coincident with improvement elsewhere. If you look at the most troubled municipalities, you see a few with a good deal of improvement (Jersey City, East Orange) and some where not much has changed (Paterson, Elizabeth, Irvington). Newark has deteriorated on some metrics and improved on others, marginally worse).

              1. “No, there hasn’t been notable deterioration in NYC in the last four years.”

                You may not notice it looking from afar on a page of statistics, but one can see with their own eyes what has happened in Manhattan. I can’t say for the other boroughs through my own eyes but I think they will see a negative result of the present administration. I see it whenever I go there. I am somewhat aware because I pay a good deal of taxes to NYC and have a home in Manhattan.

                I’ll quote my exact words so you can update your response: “I think under its present mayor NYC is again turning in the opposite direction. I’m not sure of present statistics but sometimes they lag behind the stupidity of NYC leadership.” I should have added the word today’s NYC leadership.

                I don’t know what they did with the medallions but a lot of people make money off of them under the table and the NYCity Council was thinking of impairing app drivers such as Uber. Traffic is horrible and no one obeys the law regarding stopping and causing gridlock. I think the Mayor isn’t tough on crime and violations of NYC rules something that markedly affected the city and was cleaned up under Guiliani. A fashionable part of Madison Avenue is becoming a vacant street. NYC prospers but not because of the Mayor or his policies .

      2. Your first sentence is straight out of wackjob central and assumes ridiculous facts not from this world. Such wingnuttery renders the rest of your nonsense to be nothing but more cut and paste tomfoolery. It looks good on you though. Pro tip: what IS that ticking sound?

        this is to “now that crazy alex is off, I have to make up more of my own crap” spaz

        1. Marky Mark Mark – you cannot make a decent argument to counter DDS so you try to denigrate him. That is foolish, he is far more clever than you.

          Super Pro Tip: That ticking sound is your pacemaker keeping you alive.

    2. TBob – Both sell outs – Booker big pharma and Harris big banks. DNC is losing more and more by promoting these establishment losers.

  2. The President has picked candidates superbly qualified for the Supreme Court and I can’t see the objections to the quality of any of Trump’s two choices. Despite the doom and gloom of the left he is doing a lot of things right. Headline from the WSJ “Layoffs Just Reached a Half-Century Low” I think the American people are happy to have jobs and would prefer a Supreme Court that interprets the Constitution instead of legislating from the bench.

      1. The crux of Citizens United is that you’re not relieved of your 1st Amendment rights when you are issued a corporate charter. Of course, trade unions and newspapers are incorporated as well. The liberal mentality is such that they fancy that fair laws allow their side to organize and impede the opposition from organizing. The childish drivel about Citizens’ United is one piece of evidence (among others) that contemporary liberal discourse is now largely valueless.

        1. I don’t, Allen it’s that I don’t like when corporations have more power and rights than do people or individuals. Equal justice under the law should mean the same for everyone. But if you are honest with yourself, you know that it is not true.

          1. How do corporations have more rights to freedom of speech than people or individuals which I believe in your context are the same.

            “Equal justice under the law should mean the same for everyone.”

            You ought to think about that sentence a little more. Equal justice under the law means equal justice not that everything works out to be the same or identical.

            1. You made my point, equal justice is not equal. Corporations can go to a court and ask for many things that a person or persons cannot get. Not without a butt-load of money anyway. Bankruptcy laws is just one example. Do you think that justice is served when one party has a court appointed lawyer and the other side has millions to spend? Can a person see his congressmen that might need help? As with a lawyer from the Widget corporation that needs to see the same? And damn right, in those type cases who has more rights?

              1. Bankruptcy laws is just one example.

                One example of what? Both households and corporations can apply for protection from creditors.

                1. Yes both can apply, talk to a bankruptcy lawyer and see who has more protection. If I steal 25 thousand in bank fraud and you as a corporation steal 25 million in bank fraud, who is going to jail and who gets to pay a fine?

                  1. who is going to jail and who gets to pay a fine?

                    If an officer of the bank has proven criminal liability, he will go to jail. Remember James McDougal?

                  2. talk to a bankruptcy lawyer and see who has more protection.

                    What do you mean, ‘more protection’? Whether your a corporation or a household, your creditors have to be satisfied with whatever assets are on hand. Corporations have secured creditors, which households do not. One difference is that there is a class of household debt (student loans) which cannot be discharged in bankruptcy. This is fairly novel, and not an artifact of the distinction between households and corporations.

                  3. you make a valid point but what is the conclusion? get rid of corporations? oh ok, well kiss industrial civilization goodbye then.

                    sorry don’t take a problem and then use it to justify a cure that is more devestating than the initial problem was in the first place.

                    inequality will always be with us. jesus said it of the poor. some animals are always going to be faster and stronger and smarter and pareto princple, they will get more and do more and breed more, etc. most of the work is done by a few workers, not by most. most sales come from a few customers not most. this is part of the mysterious fabric of reality! it just is. we don’t like it. we don’t like death either but it just IS.

                    we should be concerned for the poor, help them, not abolish all the things that undergird profit and progress for the rest, and sink the boat for everyone in it. gosh.

              2. Equality under the law is about the best that can be offered. There is not such thing as the same treatment.

                One of the reasons for people to work hard is so they have more money. We could make everyone equal (financially) by giving everyone a salary that is the same no matter what they do. How do you think that will work out?

                Anyone can declare bankruptcy so you need another example.

                I like expensive things. When I was young I lived in a slum and didn’t want to do that for the rest of my life. That pushed me to work a bit extra hard and be cautious. It paid off. Had I been told no matter what I did I would end up in the same place I don’t think I would have applied myself in the fashion I did.

                1. Maybe Fishwings thinks Conrad Black’s travails are some sort of hoax.

                  1. DSS, I don’t think he knows who Conrad Black is and he along others that publish in the NY Sun Online are some of the people I read. I don’t think reading their opinions makes one a bit too far on the right. Do you?

              3. listen there is no question that money allows people and corporations to vindicate their rights. no question. the rich always do better in court, hell yes. only a fool doesn’t understand this.

                HOWEVER you can’t abolish money and private property to level the playing field. why? then the cure is worse than the problem. it’s like saying get rid of the wheel because of all these pesky flat tires.

          2. “more power?” anybody and any corporation with more money, tends to have more power, all things being equal. shall we abolish private property? been there, done that!

            if you believe not just in equal rights but equal outcomes, then you are a Jacobin leveller. What’s next Fishhead, do we all get the same income? Do all corporations get the same capital budget? Look if you are Bakunin anarchist just say so and we don’t need to puzzle ourselves over bizarre comments like that.

    1. The objection is that they have a ‘right wing agenda’, which is to say that policy disputes will be referred to state legislatures. The idea of persuading a state legislator to do something is anathema to liberals, because they think they’re better than that.

  3. I have always found Whitehouse an articulate and insightful member of the Congress…However, I found the attack on the current justices to be unwarranted and distorted.

    So apparently, JT has now found Whitehouse to be articulate, insightful, unwarranted and distorted. In other words borrowed from mespo Bat sh!t crazy.


    That ‘dark money’ in politics is largely the result of a conservative SCOTUS decision: “Citizens United’. In reading this column, one might wonder if ‘dark money’ is good for democracy. And the fact that dark money ‘was’ the result of a conservative-ruled decision, suggests that the concerns of Senator Whitehouse are perfectly justified.

    1. That ‘dark money’ in politics is largely the result of a conservative SCOTUS decision: “Citizens United’.

      Yes, “dark money” only entered the world of politics in the 21st century. You are one naive troll. One of the primary arguments for the 17th amendment was just this form of corruption in politics. And two things resulted from that disastrous amendment; 1. it weakened the power of the states in the central government and it made it far easier for the lobbyists by moving them to K Street.

      1. Olly, you’re saying we should scratch the 17th Ammendment and go back to letting legislators elect Senators..?? If that was working so well, why did we need a 17 Ammendment..?? That Ammendment came about for a reason. State legislators in the 19th Century were easily bought.

        1. That Ammendment came about for a reason. State legislators in the 19th Century were easily bought..

          And what has changed with the 17th amendment? They are still being bought and it has simply made it more convenient for them by centralizing their efforts.

          The Senate used to be the state’s voice in Congress. Now Congress is 535 representatives of the people. That’s not how it was designed. This confirmation process shows just how incompetent voters are in selecting this body.

            1. The odds of that happening would be the same for the drug cartels to stop supplying and addicts to stop using. And for the same reason.

      2. It wasn’t disastrous. You just had a Senate with a different skill set than you had before. If you switched back, not much would change. You’d just have a mess of people like Alphonse d’Amato in the Senate. Unmodified bicameralism stinks, no matter how you elect the upper chamber.

        1. It wasn’t disastrous. You just had a Senate with a different skill set than you had before.

          Yeah, everything is grand. I’m sure it’s just a coincidence that the rise of the administrative state occurred after the 17th amendment. Those corrupt Senators selected by the state legislators were always going to sell out their states to the feds anyway. No one was going to notice. So the obvious move was to select Senators by popular vote; yeah, those citizens will surely vote based on what is best for the state, not necessarily themselves.

          1. Olly, features of ‘the Administrative state’ are pervasive in modern countries. Whether that’s good or ill, to attribute them to granular aspects of the organization of our general legislature is very strange. . If the current situation is disagreeable to you, you need to get down to brass tacks and attempt to contrive institutional adjustments which address those specific concerns. Soi-disant ‘constitutional conservatives’ can’t be bothered with that and just adhere to the cargo cult fiction that Hari Seldon James Madison had it all figured out.

            1. features of ‘the Administrative state’ are pervasive in modern countries.

              That’s because laws have to be administered and that requires a body of bureaucrats to do that. The features however were not intended to be a replacement for the legislative branch.

              If the current situation is disagreeable to you, you need to get down to brass tacks and attempt to contrive institutional adjustments which address those specific concerns. Soi-disant ‘constitutional conservatives’ can’t be bothered with that and just adhere to the cargo cult fiction that Hari Seldon James Madison had it all figured out.

              Disagreeable to me? I’m just surprised it’s not disagreeable to you. In fact the only thing that is consistently disagreeable to you is any idea you didn’t think of first. And apparently that extends to that silly old James Madison and his cohorts that debated and contrived all those clauses in the constitution. It’s unfortunate that convention didn’t have you on the floor, magnificently opining about everyone else’s flawed logic while offering nothing to improve the design.

              Personally, I agree with that soi-distant ‘constitutional conservative Ben Sasse and what he asserts as the problem and where we should begin to fix it.


              1. And apparently that extends to that silly old James Madison and his cohorts that debated and contrived all those clauses in the constitution.

                Olly, the Constitution’s a law. It’s not some grand theory reified, but what you see when competing interests and extant conventions are amended in the course of political compromise. Never had to be perfect, just serviceable. Because society isn’t static, its serviceable quality can improve and decline. It’s got severe structural defects as we speak, but ‘constitutional conservatives’ are completely unmotivated to address them because they’ve bought into the notion of Madison the omniscient watchmaker.

              2. Where in that soliloquy does he offer one practical suggestion? (And, while we’re at it, his thesis on the source of Congressional behavior rings hollow).

                1. The guy had 15 minutes. Read the bill. Don’t vote on bills you haven’t read or understand simply because the bill delegates authority to XYZ agency to write the regulations (laws). Don’t punt Article 1 powers to the executive branch. Be accountable to your constituents instead of cowardly hiding behind failures in the executive branch to implement your sh!tty legislation.

                  1. He had 15 minutes, and he wasted a great deal of it with excess verbiage.

                    Again, I don’t buy his diagnosis of why Congress does this.

                    1. Your critique is less than compelling. You’ve not identified what verbiage was excessive, nor have you offered your why Congress does this; whatever this is.

                      Give it a shot.

                2. DSS in essence he made a speech to the American public that was true and informative to those that do not spend a lot of time concerned over these issues. He actually did provide a suggestion, but it wasn’t to the government officials. It was to the people.

                  I think this speech would be something good for all to listen to and take heed of. Not the greatest speech but a lot better than Cory Booker shouting nonesense.

          2. Yeah, everything is grand.

            No, everything isn’t. The question at hand is whether having state legislatures elect the Senate will have a significant salutary effect. The conjecture one can offer is that Senators will pay more attention to state legislators and less attention to donors. That’s not a bad thing, necessarily. Keep in mind though, that given the political culture we have, what state legislators will want is more swag. Whatever you think you’re going to get, the smart money says you’re going to get Cornhusker kickbacks and Louisiana purchases.

            1. The conjecture one can offer is that Senators will pay more attention to state legislators and less attention to donors.

              Extend that thought further. The reason they’ll pay more attention to the state legislators is because the state legislators would be paying more attention to them. Certainly far more attention than the ordinary folk since they will be held accountable by people more familiar with their state reps.

    2. money always finds it way into government. even in supposedly communist regimes like China where everyone is looking for a bribe. Or so I read.

      Our American system tries to give it legitimate pathways. it is imperfect and a question of what works within the constitutional framework.

      however citizens united is not really a novel ruling. the idea has always been that corporations have certain rights to expression, and certainly not just commercial expression.

      if anything our first amendment protects political speech and ergo SPENDING most of all. not obscenity, which was illegal almost for the first 190 years of the republic without question. you go back to the Framers and they were not really caring too much about advertising sex things or whatever their version of obscenity was in those days. they were concerned about government suppressing political freedoms and political self expression most of all.

      the point of Bork, which was valid even if people didn’t like the point.

      don’t like it? amend the first amendment then. use democracy to change it, don’t try and impose judicial tyrants to pass down a new edict. ( like they have often done for liberal causes, the past 60 years, ahem. )

      1. i remember I made this point in a debate back in university days and a top ACLU lawyer recognized the validity of what I was saying about the first amendment protecting political speech not per sexual expression. It’s not a controversial point. She added that’s not to say that we should not be concerned about excessive government action against sexual expression. And I would agree with that. but it is to say that historically, and across our entire American experiment, political speech is dead center at the target of what the first amendment is getting at.

        arguably even more so than religion, which again, was not even incorporated against the states until after the 14th amendment, according to many scholars. I am not expert on that subject but the primacy of political speech is a foundational premise.

        The critics of Citizens United have a quarrel with the FIrst amendment more than the SCOTUS.

        1. and I might add, that there is something quite perverse about America today, where it is still illegal that free adults can’t exchange money for sex, which is mostly illegal, but your big corporations like apple and google are helping purvey explicit pornography to the tens of millions of underage kids who have cell phones in their pockets. a very perverse situation!

          even more odd, you CAN exchange money for sex, legally, if only it is on video or film! then it becomes first amendment protected expression. Very perverse! How can the recording on media and exhibition of a fundamentally private sexual thing be legal, but the very thing that happens in private WHERE IT BELONGS, is illegal?

          I should like all the Bible thumpers of America to address themselves to that as well! They are still beating dead old issues like abortion while other manifestly perverse situations bereft of common sense and decency are ignored. …. I wish also that Republicans could address themselves to on both sides of the equation, if they had the imagination. I regret mostly they do not.

          I would say: legalize sex work, and restrain the distribution of explicit pornography over the internet to verifiable adults. That’s exactly where England is about now, and for once the Limeys have it right.

  5. Now that we’ve seen a handful of the documents which the Republicans wrongly concealed by marking as confidential we know that the American people are being taken for suckers. These documents show the depth of GOP depravity in the lengths to which they will go to put a truly corrupt man on the Supreme Court. The documents Booker has released show Kavanaugh to be a liar at least and perhaps a racist as well.

    1. Peter Davis, that you would like what you said to be true is understandable because one really cannot mount an ofense against Kavanaugh unless based on ideology. He has well over 300 opinions that can tell everyone what he thinks.

      The documents Booker “released” were actually released by the agency at his request. Booker loves to grandstand but he is not substantial.

      There is no depravity expcept perhaps in your imagination. Why don’t you show the proof that Kavanaugh is “a liar at least and perhaps a racist as well.” YOU CAN’T. What you have said is made up drivel.

    2. You should pay attention to the process. The documents in question were all released. The one Senator Booker referenced had been released hours before the hearing began – which he may not have known. The Committee staff would seem to be working around the clock with both the Archives and the Bush Presidential Library to provide any document any Senator wanted to address in the open session.

    3. LOL! Did you even bother to read the documents? The documents that were released before Booker’s Spartacus moment blew up any claim Kavanaugh was a liar or a racist.

      Try again.

    4. The documents show no such thing. You just described Kavanaugh as truly corrupt, a liar, and a probable racist. You cannot be this stupid, can you? Where do you get your news and analysis?

  6. The country really needs a divorce. Left Coast, Right Coast, and Flyover. I’m not sure what to do with isolated cities in the middle, though. But anyway, if we could just amicably segregate into non-interfering realms, the competing visions of society could proceed unhindered. At least, we would avoid all this angst and guerrilla warfare.

    1. It will only happen with guerrilla warfare, and it almost certainly is coming.

      Guess who is more prepared? Definitely not the coasts, where the unsustainable pockets of population are, but not the food. Sorry, but the left is cruising for a bruising.

      I think one of the most hilarious things is the fact that the average Mexican is so much more conservative personally speaking than the average American liberal. So much more.
      No comparison. In every dimension, more religious, more family oriented, more traditional, and usually a hell of a lot more genuinely “racist” in favor of their own kind, or ethnocentric if you want to call it that…… Likewise a lot of Asians, even some africans I have met. While their American born kids are not, the immigrants often are.

      I think, let Mexico have southern california back. let them have it! And all the leftists from Silicon valley can rebuild down there if they think it’s so great. Let them have the whole stinking rotten state if they like. I vote for California to secede! Please, pack your bags and go!

      1. Haha. Rich. More “end of days” nonsense. Or is it “Walking Dead” nonsense? Pro tip: stockpiling cammo underwear and facepaint still leaves you as nothing more than a keyboard warrior.

        this is to “I thought about saying something mean to the black kid who parked my car but decided to write an anonymous post instead” kurtzie

  7. Whitehouse’s hypocrisy is the least of the issue. He’s a lightweight and it shows.
    The real problem is the disgraceful manner in which they have politicized and diminished the Senate. There has been no call for the interruptions to stop, no condemnation of the intimidation of the the judge’s little girls. The coup de grace being the Booker farce over the documents.
    The constant bleat about Trump “attacking” our institutions rings hollow as they are willing to trash the reputation of the Court as an institution, in order to raise money and seek power.
    The more I see these crass displays in the Senate, from both sides, the more I become convinced that we need to repeal the 17th Amendment and remove the political party politics from the Senate.

  8. Turley wrote, “Putting aside Whitehouse’s own bias in identifying a pattern of bias, he, like many others, confuse principle with politics.”

    There he goes again. There’s a reason that the tu quoque fallacy is fallacious. The truth about any given hypocrite is irrelevant to the truth of that hypocrite’s claim. Thus, the notion that liberals are hypocritically biased in identifying a pattern of bias amongst conservatives is irrelevant to the liberal claim that there is a pattern of bias amongst conservatives. And there’s a pattern of bias amongst liberals, too. No kidding?

    It was just yesterday that Paul C Schulte posted Ambrose Bierce’s snide definition of politics:

    A strife of interests masquerading as a contest of principles. The conduct of public affairs for private advantage.

    And today we get Turley claiming that Sheldon Whitehouse and others are confusing principle with politics. Supposing, as Turley does, that one pattern of bias [interests] is principled and the other pattern of bias [interests] is also principled, how does it come to pass, as Turley imagines, that only one pattern of bias confuses principle with politics while the other pattern of bias draws a clear distinction between principle versus politics? Maybe there’s also a clear distinction between public affairs versus private advantage. Or not. What does Turley think? Beats me.

    1. L4Yoga enables David Benson, R. Lien and Marky Mark Mark – Is Ambrose Bierce snide or pragmatic, as I stated?

      1. I’m changing my mind. Snide is an indirect and unkind criticism–like a back-handed compliment. Bitter Bierce is closer to sardonic. Here’s Merriam-Webster’s entry:

        Definition of sardonic: disdainfully or skeptically humorous : derisively mocking ·a sardonic comment

          1. Fine then. I’ll switch to cynical, instead. Then move on to pessimistic and possibly even fatalistic. They didn’t call him bitter for nothing.

            1. L4Yoga enables David Benson, R. Lien and Marky Mark Mark – who is “they”?

              1. From the article on Bierce at The Poetry Foundation.

                In 1872 Bierce and his wife moved to England where, during a three-year stay, he wrote for Fun and Figaro magazines and acquired the nickname “Bitter Bierce.”

                1. L4Yoga enables David Benson, R. Lien and Marky Mark Mark – does the articles cites a source?

  9. Mr Turley I have listened and watched you for a couple decades. I have noticed the last few years you have finally woke up to what the left has been up to.
    I’m hoping one day you won’t join the right but at very least say you have had enough of the left..From the Clinton Foundation to her time at State and the Obamma
    complete destruction of the Constitution. The right aren’t perfect but this last 10 years has been a left mess. The Big Tweet is a freak of nature but to date.

    He hasn’t sold guns to the Mex Cartel and had his AG lie under oath about it.
    He hasn’t trotted out a Susan Rice to lie like a sidewalk about Americans dying in Benghazi.
    He hasn’t sicked the IRS on his opponents
    He hasn’t spied on his opponents to date
    He hasn’t had Bob Creamer in the Oval Office to talk about how to win eleections
    and on and on.

    I realize visits to MSNBC CNN is a wonderful place to hang out. However it is a very sad excuse for a network

    1. Monty, since you mentioned Bob Creamer, I wanted to make sure that people were aware of who he was. Headline from the Washington Post. “Two Democratic operatives lose jobs after James O’Keefe sting” and to explain why they HAD to be fired here is a headline from another source: “Exclusive: O’Keefe Video Sting Exposes ‘Bird-Dogging’ — Democrats’ Effort to Incite Violence at Trump Rallies”

      …And here is the sting, courtesy of Project Veritas. This is just one of a series that implicate Creamer and others in illegal activities. Note Creamer visited the WhiteHouse 342 times and Obama in specific 47 times. 47

    2. Excellent. Not quite clear about your fictional chaff, but the day glo bozo has lied thousands of times just since he was inaugurated. The Time or the Post has an up-to-the-minute count; but since you wackjob-wingnuts don’t like sources that rational people use, I sincerely doubt you’re aware of that fact–since hannity didn’t tell you. Thanks for playing, so sorry for your loss.

      this is to “when I get into the sauce, I like to just make up sh*t for the hell of it” monty-boy

      1. Marky Mark Mark – funny you should talk about lying when you do it every time you are on this blog and with almost every post. I am sure your count is just as high as the President’s. Do you really want to go there? And since the NYT’s and the WaPo rely heavily on anonymous sources, how much lying have they done? Hmmmmmm????????

  10. When president Obama presented his 2 female appointees to the Supreme Court the republicans hardly gave any resistance. I know the guy in the White House knows he’s at war with the left, now maybe the rest of the republicans will stop bringing a knife to a gunfight.

    1. If you are comparing the Democrats to the late supporters of the Republic, you have a rather flawed understanding of history. If anyone was our Octavian it was FDR.

      Today what you have with the Deep State and Mass media resistance to Trump is essentially something like the Praetorians removing and Emperor because they got a better paycheck somewhere else.

      If Trump is your idea of Julius Caesar, that’s not a good parallel either. But if he is, there is still time, the die is not cast yet. Keep on pushing and you may not like how it shakes out.

  11. Since it seems that both sides, if they are honest with themselves, know that Mr.Kavanaugh’s confirmation is a statistical certainty it is really a formality to go through the motions of asking pertinent questions. But it instead provides a venue to over-pressurize the calliope and blast dreadful melodies of discord and fanfare to frighten or mesmerize any potential audience.

    It’s the same old circus–same old clowns–same old monkeys.

    1. Doubt it’s a certainty. Depends on what stunts Susan Collins (Careerist of Maine) and Sleaza Murkowski (R – Her Daddy) pull.

      1. If the Republican Senate fails to confirm Kavanaugh to SCOTUS, then Congressional Republicans in both houses will not be able to distance themselves from Trump when the time finally comes for them to do so. They will become dependent upon Trump for another conservative SCOTUS nominee to replace Kennedy or to fill the next vacancy after that. If the Republican Majority in the Senate gets any skimpier than it is now, then . . . well . . . Congressional Republicans in both houses will suddenly regain their ability as a minority to distance themselves from Trump when the time finally comes for them to do so. One wonders what the principle behind those politics might be.

    2. Aghhhh!!!!!!!!!!!!!!! You can’t say “monkey”!!!!!!!!!!!!! You know that!!!!!!!!

  12. So Whitehouse is an intellectual fraud? How does that distinguish him from any other Democratic politician, pundit, or academic?

  13. To their credit, liberal justices like Ruth Bader Ginsburg follow a consistent view of the Constitution, allowing for more evolutionary rights as part of a “living” Constitution.

    No, the ghastly woman’s view of the Constitution is that it’s a useful icon to employ in imposing preferred policies by the judicial ukase. The woman has no business in any position of responsibility and a just disposition of her would be to deport her to some Eurotrash latrine that won’t mind having her taking up space therein.

    1. And TStD’s view of The Constitution is to “deport [Ruth Bader Ginsburg] to some Eurotrash latrine . . .” because “preferred policies [should be] impos(ed) by The President’s [if not also The Tsars’] ukase.” Besides, Sheldon Whitehouse, like any other Democratic politician, pundit, or academic “is an intellectual fraud?” Cazart!

    2. ukase, gosh, another word I didnt konw. I’m like, did he just say Ustache? She’s not Ustache material, that’s for sure! had to look that up. means “Edict”

      and a Russian word. spasiba, tovarishe, I learningk many words!

  14. Professor, Thank you for this important post.
    The attitudes, and actions of Dems like Whitehouse are literally giving me stomach upsets daily. . Every time I try to relax and briefly enjoy not having a PC obsessed administration, some liberal ruins the moment. How do the Trumps stand it? They must have digestive systems made of iron.
    I look at Brett Kavanagh and think about what a brilliant, wholesome, happy, productive American, father, son, husband, What a delight to hear him speak.
    Then a Democrat ambushes it and turns what was lovely into something ugly..usually just for spite. And usually in a deceptive, ridiculously uninformed way. How do they survive on a daily diet of hate and revenge.
    H.L. Mencken’s wonderful quote about Puritanism has been a favorite of mine for years, but for these times, should be updated:
    Liberalism is the haunting fear that someone, somewhere, may be happy.

    1. I look at Brett Kavanagh and think about what a brilliant, wholesome, happy, productive American, father, son, husband, What a delight to hear him speak.

      See Ann Althouse’s fisking of his remarks. The man’s given to sycophantic blather. That’s not a delight to hear. Let’s just hope the suck-up makes a satisfactory appellate judge.

      1. Teaching Spastics………..You really have no use for me on this blog and I’m sorry for that, because I am almost always impressed with your comments. Some of them I’ve written down because I think they are incredibly written and so on point. I’ve wondered at times if you were actually more than one person, because you are so smart and seem to have total recall of everything you’ve read.
        What I wrote about Brett K. came from my heart and my personal 50 year experience with attorneys and judges with whom we have known socially and personally.
        I have always loved hearing the Constitution being argued and discussed. It fascinates me. That started when my husband won a national Constitutional scholar award while he was in law school. It was a big deal to me for him to be recognized nationally.
        I don’t expect you to respond to this. Also, I don’t know who Ann Althouse is.

            1. TStD also gets sorely rankled by something TStD calls “anodyne feelz,” an example of which might the statement, “What I wrote about Brett K. came from my heart.” However, I could be wrong. Perhaps the sample statement would qualify as gooey, gushy, touchy, feely, huggy, kissy, “sycophantic blather,” instead.

              P. S. It does get rough around here from time to time.

              1. L4Dinne……It’s ok if it gets rough…….but I do have a right to my opinion, right? Thanks

                1. Under the circumstances of The First Amendment, criticism remains the only permissible remedy for other people’s opinions. IOW, you can have your say about me, as well. Everybody else does. Pile on. Like that character from The Crucible, Giles something or other: “More stones, please.”

                2. he’s a curmudgeon and deserves at least a little of what he dishes out. that’s why i call him spas. I like a lot of his crap too. but if I met him I might laugh at his bowtie.

            2. Cindy though DSS (teaching….) has some great comments sometimes he reaches too far and falls down. That is OK because unlike others on the blog he is generally logical and knowledgeable. David Benson on the other hand has major problems with facts and proof. He is said to be a professor and that professor under his name was involved in the writing of a paper that I once cited in a response. Apparently he didn’t recognize it there or elsewhere. He also didn’t recognize his co author so I wonder about his memory or if he is the legitimate professor he claims to be.

                1. Thank you. I hope so as well, but I only go there for a week or so at a time whenever I feel like it. My permanent residence is elsewhere. NYC charges very high tax rates and I prefer houses. Cannot stand the traffic and Broadway sucks nowadays.

          1. DB:
            “Spastics oft states u̶n̶t̶r̶u̶t̶h̶s̶ her considered opinions. I suggest great care in reading his (her) prosey.”
            No need to thank me for the edit.

            1. mespo……I wonder if TEACHING Spastics is in fact the Ann Althouse who I was directed to read.
              Oh well, I still like Teaching……he/she is an extremely intelligent person….just fussy at times.

              1. She certainly keeps people on their toes — which is the hallmark of a critical thinker. Personally, I enjoy her prose. She’s sent me to “The Thinker’s Thesaurus,” more than a few times.

                1. mespo – I am going to jump into this because I think DSS has stated HE is male. I know gender confusion is a problem on here, R. Lien is not male, regardless of her protestations. She is just somebody’s gutless sockpuppet.

                2. spas is a she? i kind of assumed it was a he and he looked like geo will with a bowtie and maybe talked like Buckley.

                  1. Male. Haven’t worn a bowtie in 20 years. Thick Inland North accent.

        1. I have rude opinions about a lot of participants, but not you. No clue how you got that idea.

          1. I don’t doubt Kavanaugh loves his daughters and puts some sweat-equity in them. I’m old school and don’t think labor-intensive parenting is strictly necessary, but one shouldn’t be highly prescriptive about how people run their households. Given their respective ages (43 and 53) and the number of years they’ve been married (14), the smart money says that one of them will die married to the other.

          2. I don’t doubt he’s a skilled lawyer who understands that public policy is properly the issue of democratic deliberation, not something imposed on unwilling publics by case law. This is key.

          3. I cannot help but sigh, though. He’s another Ivy League issue. There are plenty of law schools in this country, so I do wonder how we ended up with a Supreme Court staffed by Harvard, Yale, and Columbia. Since 1953, about 2/3 of those appointed to the court have been the issue of one of those three schools, including every single appointee in the last 35 years. “Diversity” has meant they shangged someone from Stanford or Northwestern instead. The last time someone educated at a state law school was appointed to the court was in 1957.

          4. I cannot help but sigh, though. He grew up in metropolitan Washington. Nothing wrong with that per se. About 3/4 of the people who live there earn their keep (or are retired from earning their keep) in the private sector or in public agencies of a sort you might see anywhere, (e.g local school boards or road crews or police departments). Another 20% or so are (or were) federal employees who influence nothing or who influence nothing but what crosses their desk. I have among my close relations an engineer who spent his career with the Navy and the Coast Guard and a psychologist who works for the VA; they’re not part of the problematic aspect of the federal government. “Political Washington” is only a small demographic sliver of that population. Alas, he’s the son of a lobbyist who has been super-connected his whole adult life.

          5. He really went overboard.

          That’s very disconcerting to me. See Thomas Sowell on the appellate courts: you want to make sure the one you appoint is not a social climber.

          1. DSS, Charles Murray points to one of the problems you touch on. There is a lot of inbreeding going on.

          2. i agree about the Ivys

            but give him the benefit of the doubt on the smarmy kinds of stuff.

            i find it annoying as hell, personally, and dubious. but maybe he just has a lot of respect for authority. that is not entirely a bad thing. i would treat any senator with respect even if I didnt like them. I never even met one. Not that I recall at least. I met a US Rep once, he was a real slick earsling, a republican and a total fake. I disliked him immediately.

            I have meet tons of judges including some prominent jurists and I pretty much like judges, and more so the higher they go up. They are often very humble and that is not fakery. THey have seen a lot of bad things day after day and made thousands of tough calls, and it humbles them.

            I will give Brett the benefit of the doubt on personality. I dont want to be his buddy I just want him to do his job.

        2. Your are, unfortunately, speaking through your hat. You, your ilk, the gullible rubes, dupes, klan-wannabees and grifters on the make, are pro kavenaugh solely because he passed the interview in believing that the day glo bozo can ignore a subpoena while he’s president. The Bible-thumpers are on board because they know kavenough will vote to overturn Roe, thereby rendering females as second-class citizens who don’t even merit control over their own bodies. So, all the “wholesome, happy, productive American, father, son, husband” tripe is nothing but that. The authentic Republican Party believes in conservatism and moral and ethical bearing and manner in all of one’s affairs and dealings. You’ve failed.

          this is to “I thought about adding “white” to the list of tripe, but deleted it” karen

      2. DSS/TSD:
        In these times, you can’t say what you really think. What you get are platitudes wrapped in politically correct statements, bound up with a soulless smile when outrage should be the authentic reaction. Slow to anger in the face of uncivilized behavior means slow to principle which is of course what is desperately needed. It’s the historical marker of a great nation in decline: principle jettisoned for phony harmony.

        You wanna know the real reason why there is no peace in our public affairs? Read Emerson: “Nothing can bring you peace but yourself. Nothing can bring you peace but the triumph of principles.”

        Conformity is death. Silence in the face of calamity is suicide. Refusing to stand for what you know is right is cowardice. Thinking both sides to a moral argument can win is the cogitation of a fool.

      3. yes i understand that comment. indeed he is a suckup obviously but that doesn’t mean he wont be a good judge……

        in fact a lot of the best judges are exactly the kinds of men who can suffer these kinds of things with great patience.

        i never tried to coach kids, that take way too much patience especially today; once someone suggested it once and i laughed, I’m like no way, trust me, you don’t want me to restart the agoge with these kids, they aint cut out for it. nor am i. good for brett that he was a coach. he had the common touch, as Kipling said, that’s what this is signalling to us, whether it is true or not I wouldnt know.

  15. Kavanaugh agreed with a certain 5 member bloc when he agreed with Kennedy and the 4 dissenting liberals that the Gov’t has a general compelling interest to facilitate access to contraceptives (he laid aside the abortifacients) -for the reason of minimizing unintended pregnancy. So the argument from Whitehouse is prima facie false. At least on this -and by extension abortion – I think Kennedy lives on – liberals have nothing to fear.$file/13-5368.pdf

  16. The hilarious part is a post by one commenter who insisted the two requirements fo be on the Court is Age and Citizenship. Unhinged? Can’t argue with that but uneducated is right up there close to first place. Too many ‘citizens’ are citizens by accident of birth. and probably have less knowledge than the most ignorant illegal.

    1. Michael Aerethun – I remember making the comment that those were the two requirements to be qualified for the SC. Of course, you have to be nominated by the President and given the consent of the Senate. I do believe those qualifications are in the Constitution. 😉

  17. It’s interesting that the Constitution specifically declares a “right to life and liberty” unless there is “due cause,” yet a prior SCOTUS arbitrarily favored a “right to privacy” that prematurely ends the life of an innocent and defenseless unborn person (including a whopping 45% of unborn aborted black US babies, genocide by any other name).

    If any reader believes a zygote is not a one celled human being, declare here exactly what differentiates your humanity from that of a zygote. A zygote is not human like a black person is “three-fifths” human.

    1. The era when women were the property of their nearest male relative is over. You, your ilk, and the troglodytes who seek to control women by controlling their reproductive system are no longer in control, as women are now equal citizens in control of their own bodies. So all of you “incells” who fantasize about “Handmaid’s Tale” as if you could therefore “score” need to just keep your own hands on your own junk; or, alternatively, stop being a weirdo wackjob to whom normal persons (including females) avoid like the plague. So sorry for your celibacy.

      1. You and your stupid insults. Where did anyone say there were an involuntary celibate or a cave dweller? stop putting words in people’s mouths! false and defamatory garbage.

        Mark M:

        Will you retract your false statement about me rejecting the rule of law?
        Or how about your false statement that I “watch hannity and bag his balls” ?

        I am sure not.

    2. Most justices of the SCOTUS should have been impeached long ago for crimes of high office as subversion, deliberate misinterpretation, legislating from the bench, abuse of power, corruption, dereliction, negligence, etc.

      At this point, the only solution is impeachment en masse.

      Let’s start way back with “Crazy Abe” Lincoln. The Constitution DOES NOT PROHIBIT SECESSION. The SCOTUS has been failing to support and uphold and subverting the manifest tenor of the Constitution for 157 years.

      “[A] limited Constitution … can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing … To deny this would be to affirm … that men acting by virtue of powers may do not only what their powers do not authorize, but what they forbid.”

      – Alexander Hamilton

    3. I think that a zygote is a independent human being, living with its own DNA, no question.

      But the qualitative difference is the integration with the mother’s body via umbilical connection. While I do not take the Jewish view that life begins when the delivered child draws breath, I would say viability is a very real qualitative difference upon which to pivot the competing biological interests of fetus and mother.

      I think that is a prudential and jurisprudential issue and not strictly a moral one. Ethics is integral to this but the whole thing in sum is rather more complicated. I reject the Catholic viewpoint, not as incorrect dogma, I can’t do that. I do not dictate dogma. But I can reject it as a jurisprudential impossibility to sustain under all the existing facts of society which we must consider and not ignore.

      That said I think Roe was wrong when it came down and they should have left it to the states. Not much sense in arguing it again now, due to the OTC pill, any woman can have a private early term abortion. Technology changes things.

  18. Seriously? Professor Turley, what do you think of the Supreme Court that upheld a patently unconstitutional Obamacare and commingled the definitions of the words “state” and “federal” to defend its “exchanges.” These acts constituted subversion of the manifest tenor of the very Constitution the Justices are sworn to uphold. These acts are akin to the FBI allowing Hillary Clinton to operate an international pay-for-play racket and BleachBit 30K e-mails. The Supreme Court and the FBI have been corrupted and politically weaponized. The Supreme Court is dangerously far from its original structure and intent.

    “[A] limited Constitution … can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing … To deny this would be to affirm … that men acting by virtue of powers may do not only what their powers do not authorize, but what they forbid.”

    – Alexander Hamilton

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