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Brett Kavanaugh is a Distraction

No one seriously doubts that Brett Kavanaugh will be confirmed by the Senate as a Supreme Court Justice. The 2% chance that this won’t happen rests upon Democrats either delaying his confirmation until after the election and winning a majority in the Senate during that election (although the confirmation would need to be delayed until after January of 2019 when the new Senate is sworn in), or something damaging coming out in his background that disqualifies him (most likely a non-right vs. left issue).

The optics of waging a losing battle are not good. They can be, if the issues are sufficiently moral and sufficiently clear-cut. If they are not, then the losers, in this case the Democrats, look like whining fear mongers or, worse yet, chronic sponsors of opposition for the sake of opposition (as were the Republicans during many of the Obama years). 

But what about Roe v. Wade? Isn’t that a sufficiently moral issue to justify outraged opposition, even in a losing fight?  First of all, for many Americans who oppose abortion, the issue is also a moral one, so a woman’s right to choose vs the right of an unborn child to life is a divisive moral issue, not an agreed upon one. Second, Judge Kavanaugh’s opinion on the issue is far from clear. His one ruling on a pertinent case, that would have given an undocumented under age immigrant the right to obtain an abortion, did uphold the government’s right of “refraining from facilitating abortion,” but he did not vote to prohibit the abortion, only to give the government more time to find the girl a sponsor who could stand in for her parents and help her make her decision. He limited the government’s time line to 11 days, so that if no one were found, she still had time to have the abortion. His opinion and the decision of his three-judge panel was overruled by the full court. Although it can be argued that this case signals Kavanaugh’s underlying opposition to abortion, the case has so many extraneous issues attached to it that is not clear, and even some conservative, pro-life groups have objected to his nomination because they see his ruling as confirming the girl’s right to have an abortion. 

But what about the fact that President Trump promised to nominate someone who would vote to overturn Roe v. Wade?  While the president’s statements may signal his own views on the subject, unfortunately, they would apply to anyone he nominated, so to defeat him on the issue would mean never confirming any of Trump’s nominees—an unlikely scenario, no matter who is in charge of the Senate.

Kavanaugh is also characterized as arguing that a sitting president cannot be indicted, something which Democrats claim was foremost in Donald Trump’s mind when he nominated Kavanaugh. One Democratic Congresswoman has argued that this gives the president a “get out of jail free card,” and other prominent Democrats have said that, at the least, if the issue of a presidential indictment comes up, Kavanaugh should recuse himself if he is on the court. The Washington Post has given this claim two Pinochios. The Post analyzed the 2009 article in which Kavanaugh discussed presidential civil and criminal prosecution. They pointed out that he said that the legal issue was “debatable,” but the bulk of the article, which dealt with the Clinton investigation, of which he was a part, argued that because of the distracting effect of such an investigation on a sitting president’s ability to carry out his or her duties, congress should act to pass a law that would put such cases off, by extending the statute of limitations until after the president is no longer in office. The Post points out that the argument presumes that legal impediments would not prohibit such an indictment, which is why Kavanaugh recommends that congress act. In the same article, Kavanaugh recommends that congress pass a bill requiring Senate confirmations of Supreme Court nominees take place within 180 days of the nomination—which would have eliminated the Merritt Garland fiasco if such a law had been in place.

Brett Kavanaugh’s positions on abortion and on indicting a president are among many issues that the Senate needs to examine in determining his fitness to serve on the Supreme Court. They are far from trivial issues, and it is the Senate’s duty to delve into them as deeply as possible. I’m not recommending that Democrats roll over and play dead and confirm Kavanaugh without thorough vetting. But there is also an election to address. Channeling Democratic opposition into the narrow funnel of a tooth and nail fight to stop Kavanaugh, when the fight will be lost, diverts energy, media attention and airspace away from the larger issues that plague this country. Trump administration immigration policies are inhumane and incompetent and have resulted in possibly irreparable damage to many families, both those who are seeking asylum from violence in their home country and those who have lived here for years as productive members of the community and are being deported. The entire structure of environmental protection, from National Park preservation to reduction of air, ground and water pollution is being dismantled, first under the direction of a corrupt crook and now under the direction of his philosophically identical second in command, a former coal industry lobbyist. The provisions of the Affordable Care Act that protect those with preexisting medical conditions and allow insurance companies to insure high-risk clients while being reimbursed through a government program to distribute the costs across the industry are being taken away. The new tax law further protects high-wealth persons and widens economic disparity, while a Republican congress complains about poor people getting too much and tries to reduce benefits in the areas of housing and food stamps. We have a House and Senate that are powerless to oppose the encroachments of the Trump Administration on the lives of those with the least power in our society. It’s a Republican controlled congress. This is what needs to change and this is where Democrats need to direct their energy. Young people and poor and lower middle class people are being trampled upon in our society and we need a government that is responsive to all Americans, not just those with money. That’s the issue, not a Quixotic confirmation fight in the Senate that narrows the problems of our country down to a single divisive moral issue or to questionable issues of personality and philosophy in a Supreme Court nominee.

Reader Comments (2)

I'm an avowed liberated woman, born that way and re-affirmed in the battles of the '70s. But, I'm disappointed to hear chants of Roe v. Wade as this was the sole issue on which to decide a Justice's merit. I applaud you, Casey, for writing your essays of well-considered thought. Casey for President!

July 12, 2018 | Unregistered CommenterPJ Colando

What “encroachments” of the Trump Administration are you referring to? Jobs, tax cuts and higher wages empower everybody. I still also question this incessant obsession with coveting the wealth of others. I don’t question the reality that wealth and job creators will have more money than me. They take the risks and apply their talents in a way that I can’t or won’t, thus they have absolutely earned the rewards they’ve reaped. The government-induced wealth equality that you seem to propose has never and will never work. That concept is as naive as it is dangerous. It’s a highly immoral concept which ultimately awards the same wealth for the person who works twenty hours per week as it does for the person who works sixty hours per week.

As for Roe v. Wade, it is an entirely moral issue that the federal government stop endorsing the holocaust of the unborn. The right to choose to murder a child at any stage of development is not really much of a moral debate. It’s objectively heinous by any rational measure. I’ve spent most of my adult life advocating for the most vulnerable beings in our society and the unborn are without question the most vulnerable lives being summarily extinguished by our unmitigated viciousness and savagery. It’s unfortunate that even with the confirmation of Judge Kavanaugh and the repeal of Roe, abortions will only marginally decrease when the issue falls to the states. I’m afraid this act of unwitnessed barbarism is too far ingrained in the cultural landscape for it to fully erased. Perhaps abortion will return to the rare and necessary status in which it was originally envisioned.

July 12, 2018 | Unregistered CommenterMark Wheeler

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