The Court’s One-Way Drift

© 2018 Steve Feinstein. All rights reserved.

Brett Kavanaugh is still waiting to be appointed to the Supreme Court after perhaps the most contentious, histrionic, uncontrolled Senate hearings ever held for a Supreme Court nominee. Arguably not since Robert Bork’s Senate confirmation hearings in 1987 has a nominee faced questioning as politically-charged as this. The questioning was routinely interrupted by outside hecklers and protesters, often so disruptive that the proceedings had to stop momentarily. That some of these protesters were rumored to be paid Democratic political plants—unproven but certainly plausible given the rancorous state of our political discourse and the critically-pivotal nature of this appointment in the Democrats’ eyes—demonstrates the extreme lengths Kavanaugh’s opponents were willing to go to in order to thwart his confirmation to the Court.

Wannabe 2020 Democratic Presidential hopefuls like Senator Kamala Harris of CA and Senator Corey Booker of NJ assumed the starring adversarial roles and between them, managed to raise political grandstanding to new heights of ambitious, ego-fueled absurdity. It’s doubtful that we’ll ever see an exhibition that even comes close to matching Booker’s risibly inane “I am Spartacus” statement in our lifetime. Very doubtful.

Then Senator Diane Feinstein produced the 11th-hour, 59th-minute “letter,” the vague, inexact, bereft-of-specific-detail ace-in-the-hole penned by one Dr. Christine Blasey Ford alleging some unspecified sexual impropriety committed by Kavanaugh against her during their high school days, some 30-odd years ago. Time? Location? Witnesses? Actual details? Real evidence? Please. Unnecessary luxuries in the must-automatically-believe #metoo era. Charges by a Democratic pro-abortion activist against a conservative middle-aged white male are more than enough, thank you, and no further discussion will be allowed. Even by Teddy Kennedy’s lofty behavioral standards in the 1987 Robert Bork confirmation hearings, Feinstein’s last-minute maneuver ranks as one of the most incredible political stunts of all time. Hats off.

The ironic aspect of all the hoopla surrounding Kavanaugh’s appointment is that the issue that Democrats care about the most—abortion (more than free college, the environment, gender rights/identity, Government handout programs/socialized medicine, diversity, open borders, the glass ceiling, or any other)—is not in danger of being “outlawed” by the Supreme Court. In the highly unlikely event that a direct ruling on Roe vs. Wade should even come before the Court, the Supreme Court will not “make abortion illegal” regardless of how it rules. if the Supreme Court ever overturned it, Roe v Wade would simply revert to the states. Realistically, the chances of a significant number of states (or even any of them) banning abortion outright are essentially zero. All this crazed protest by progressives about Kavanaugh’s position on an issue that even he has referred to as “settled law” betrays the astonishingly ignorant, disingenuous nature of the Democrats’ position with regard to any Supreme nominee by a Republican president.

But in any event the Democrats probably needn’t worry, if history from the past 30-40 years is any indication. For whatever reason, supposedly conservative-leaning Supreme Court justices have consistently shown a marked tendency to become more and more liberal the longer they’re on the Court. The opposite is not true—liberal justices rarely, if ever, vote in a conspicuously conservative direction on contentious issues. Like the Democratic Party as a whole, liberal justices are quite good at holding their ranks. Stephen Breyer, Ruth Bader Ginsburg, Sonia Sotamoyor, Elena Kagen—none of them breaks liberal ranks on the high-profile Left vs. Right rulings. None of them is considered a “swing” vote. Ever. To the Left, the concepts of “open mindedness,” “tolerance” and “intellectual curiosity” only apply when a conservative justice agrees with the liberal stance, because it never happens the other way around. There is no mystery, no question as to how the liberal contingent is going to vote, every single time.

The same is not true of the so-called “conservative” justices. While Scalia, Thomas, Alito and Gorsuch are seemingly reliable conservatives, the “swing vote” is always an erstwhile conservative. Sandra Day O’Connor was an uncertain vote before every big case. She was appointed by President Reagan in 1981 and thought to be a definite conservative-leaning judge prior to her appointment. David Souter, named by President Bush I in 1990, definitely ended up being a huge disappointment to conservatives. He regularly strayed from conservative orthodoxy in his voting record and sided with the Court’s liberal faction more often than not. Anthony Kennedy—the judge named in wake of Robert Bork’s arbitrarily politically-charged rejection—came to be known as the “swing vote”—a term not even in existence before him. Kennedy earned the lasting ire of conservatives because in many cases he wrote that the precedent of foreign law could and should be taken into account when deciding American legal issues. Traditionalists were outraged, feeling that the U.S. Constitution and American case law history should be the basis for making domestic legal rulings, and what France did or didn’t do 50 years ago should have no bearing.

However, there is no question that both the biggest surprise and biggest conservative disappointment in recent times came from none other than Bush II appointee Chief Justice John Roberts, in his stunning deciding vote to uphold the legitimacy of Obamacare in 2012, when he sided with the liberal justices to retain the individual mandate. His reasoning was that the penalty for non-compliance amounted to a tax and that “the Constitution permits such a tax.” Therefore, according to Roberts, it met the rules of accepted Constitutionality. Conservatives were certain that the ACA’s individual mandate clause would be shot down by the Supreme Court, starting a death spiral that would spell the end to the controversial measure.

But to everyone’s amazement, Roberts upheld the law with his deciding and hotly-debated vote, sending shudders of despair through conservative ranks, not only over the specifics of Obamacare’s survival but also for conservatives’ realization that Roberts was not going to be the dependable Right vote that they thought he’d be.

Kennedy, O’Connor, Souter and Roberts—all were justices initially thought to be conservative, but whose actual Supreme Court careers ended up being largely moderate-to-liberal. The Supreme “drift” is always in the conservative-to-liberal direction. Kavanaugh, whose practical, grounded opinion history and easy-going persona suggest that he was never an extreme Scalia-type conservative to begin with, seems primed for that same leftward drift.

The outcome of Kavanaugh’s confirmation has not been determined as of this writing. But having already scored their transparent-but-predictable grandstanding points and Republican brand-damaging objectives, one can assume that behind closed doors out of the public’s eye, Senators Feinstein, Harris, Booker and the entire liberal mainstream media machine are actually breathing pretty easy these days. Rejection = outright Democratic victory. Confirmation = likely long-term Democratic victory.

 

 

 

 

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