Brett Kavanaugh Gonna Strict Constructionist All Your Abortions And Gay Weddings Away
Rachel Maddow brought us a newly relevant bit of tape from the Before Times last night, of a speech Brett Kavanaugh gave when he was just a plain old federal judge on the DC Court of Appeals. He was remembering his icon, Antonin Scalia, and what a great guy he was for interpreting the Constitution as if it were still 1787, since that is of course the only just and proper way to think about that dead dead document.
Of particular interest is this passage where Kavanaugh praises Scalia's love of Scalia's strict constructionism, because there was a man who believed in limited government, no matter who ends up losing some of that almighty liberty they thought they had. Scalia, you see, was
a fierce guarantor of individual rights articulated in the Constitution, and he was never afraid to use his judicial role to upend even seemingly settled practices that infringed on those rights. No deference [to legislators at any level] there.
Which is why limits on corporate campaign spending are an infringement of millionaires' free speech rights, you see. Oh, but it's a very different matter when it comes to things like ladyparts and who gets to make laws governing them, because if rights aren't explicitly stated in the Constitution, they can't exist at all -- even though the Ninth Amendment is pretty darn explicit about the matter, which seems kind of persuasive to a muddy-headed liberal like Yr Wonkette. But nope, not for Scalia, and apparently not for Kavanaugh, who admires his bold commitment to undoing judicial mischief like Roe v. Wade and Obergefell v. Hodges, where Scalia's dissents are far more impressive to Kavanaugh than the clearly flawed majority opinions (what some fools might call the actual law of the land).
[Courts] have no legitimate role, Justice Scalia would say, in creating new rights not spelled out in the Constitution. On those issues he believed in complete deference to the political branches and the states. Deference not for the sake of deference, but deference because the Constitution gave the Court no legitimate role in the case. Think about his dissents in Casey on abortion, and Obergefell on same-sex marriage, his opinions on the constitutionality of the death penalty in response to the abolitionist positions articulated by some of his fellow justices over the years. For Justice Scalia, it was not the Court's job to improve on or update the Constitution to create new rights.
40 years of precedent since Roe? Screw it -- not in the Constitution, so states can regulate abortion however they want. Same for gay marriage. You want that, amend the Constitution.
As Maddow points out, this is kind of a big fucking deal. And apparently, people are paying attention: recent polling shows support for Kavanaugh's confirmation is down there with a couple of nominees who ultimately didn't get confirmed:
Hmmmm ... that Garland fellow seems really well liked, bet he's still available!
In other Brett Kavanaugh news, there's still the little matter of whether Kavanaugh lied to the Senate in his 2006 confirmation hearings for the DC Circuit, which is the sort of thing that might ordinarily sink any nominee, much less one for the Supreme Court. The New York Times reported last week that Kavanaugh seems to have fibbed about his role in pushing through the confirmation effort for a "controversial" (in this case, a teeny bit racist) federal judge, Charles W. Pickering.
Oh, wait, that's not all! Three Senate Democrats also want to get a lot more documentation on Kavanaugh's involvement in the GW Bush torture program. Kavanaugh said in 2006 he had no involvement at all, but Sens. Dianne Feinstein, Patrick Leahy, and Dick Durbin wrote a letter to Judiciary Committee chair Chuck Grassley saying they have good reason to doubt that:
We have already seen records that call into serious question whether Judge Kavanaugh was truthful about his involvement in the Bush Administration's post-9/11 terrorism policies when he testified before this Committee during his 2006 nomination hearing [...]
These documents are currently being withheld from the public at your insistence, but they shed additional light on Judge Kavanaugh's involvement in these matters and are needed to question him in a public hearing.
The documents are currently marked "confidential," and the Democrats want them made public so they can become part of the record in debating Kavanaugh's fitness for the Court. So that could make two matters he may have lied about to the Senate -- not usually a body that's tolerant of people fibbing to them.
Oh, but Republicans have a lot of law they want to reshape for decades before they're finally flushed out of power, so there's really no reason to fixate too much on the past. Just confirm the guy and then see if anything bad surfaces once he votes to overturn Roe, OK?
Doktor Zoom's real name is Marty Kelley, and he lives in the wilds of Boise, Idaho. He is not a medical doctor, but does have a real PhD in Rhetoric. You should definitely donate some money to this little mommyblog where he has finally found acceptance and cat pictures. He is on maternity leave until 2033. Here is his Twitter, also. His quest to avoid prolixity is not going so great.