Bad Arguments Against Brett Kavanaugh
There are good arguments as to why progressive Senators should vote against his confirmation. Let's stick to those.
Democrats are, as one would expect, lining up in opposition to Brett Kavanaugh, President Trump’s nominee to replace Anthony Kennedy on the Supreme Court. While he’s enormously qualified in terms of intellect, education, and experience, there are good arguments as to why progressive Senators should vote against his confirmation.
There’s reason to fear that he’ll provide a fifth vote to overturn the constitutional right to abortion created by the Court in Roe v. Wade.
While he was part of Ken Starr’s investigation of President Clinton, he had subsequently written a law review article contending that such investigations of sitting Presidents are a bad idea. While I happen to agree, that position creates something of a conflict of interest given that the President who appointed him just so happens to be under such an investigation.
One could also argue with credibility that, while replacing arch-conservative Antonin Scalia with a younger version is acceptable, replacing the relatively moderate Kennedy, who was frequently the swing vote on the Court, with an arch-conservative is bad for the ‘country.
Given that Republicans have a majority in the Senate and that, with the help of Democrat Harry Reid, they’ve abolished the filibuster for judicial nominations, none of those arguments are likely to carry the day. But they’re good faith arguments that may help Democrats win back the Congress in November.
Senator Bob Casey of Pennsylvania, though, is advancing a rather silly argument against Kavanaugh:
“In a nation with over 700 sitting federal judges, many of whom were appointed by Republican presidents, it is outrageous that President Trump will nominate from a list of just 25 dictated to him by the Heritage Foundation. This list is the bidding of corporate special interests hell-bent on handing health care over to insurance companies, crushing unions that represent working men and women, and promoting policies that will leave the middle-class further behind. Any judge on this list is fruit of a corrupt process straight from the D.C. swamp.
Heritage, which is an extreme Right organization, just released a new proposal to end protections for people with pre-existing conditions and gut Medicaid for seniors, people with disabilities, and children. They recently hosted a press conference for Republican attorneys general who are trying to eliminate those protections through the courts. In Pennsylvania, there are more than 5.3 million people (including 643,000 children) who have pre-existing conditions.
Heritage has also called labor unions – who helped build the middle class – “cartels.” From the formation of the first permanent Pennsylvanian local labor union in Philadelphia in 1792, through the Lattimer massacre in Northeastern Pennsylvania, to the Homestead Strike in Western Pennsylvania to today’s struggle to protect the right to organize, Pennsylvania workers have led the way to ensure that working people have basic rights, good wages, and benefits, like health care. The last thing working men and women in Pennsylvania need is another corporate justice on an increasingly corporate court.
First off, it’s just disingenuous to call Heritage “an extreme Right organization.” It’s a rather mainstream conservative outfit that houses scholars with a wide range of views within that rubric.
Second, and more importantly, the President of the United States has nominated a candidate for the Supreme Court. The fact that he chose that individual from a list of judges that Heritage vetted and found desirable is simply irrelevant. Kavanaugh is either qualified to sit on the Supreme Court or he isn’t.
Third, the whole “bidding of corporate special interests” business is absurd. Kavanagh is an independent judge serving on a US Court of Appeals. If he’s taking money from corporate interests, he should be impeached immediately and his nomination to the Supreme Court rejected if not withdrawn. Otherwise, it’s just a red herring.
Now, Casey is certainly within his rights to oppose Kavanaugh because he finds his votes in the various cases referenced above extreme or problematic. While I happen to think Presidents are entitled to the confirmation of their judicial nominees if they’re intellectually and experientially qualified, it has long been accepted that ideology plays a major role in both the appointment and confirmation process. But just make the argument that having Kavanaugh on the Court would be bad for Pennsylvanians without cheap rhetoric about a corrupt process.
As I said in my post this morning, most of the immediate reactions you’re seeing from Democrats and advocacy groups on the left or Republicans and advocacy groups on the right, are obviously cookie cutter statements that would have been released using basically the same language regardless of who the nominee was. In fact, there’s one particularly embarrassing example that was spreading around Twitter last night of a press release from a left-leaning group where someone apparently hit “Send” before remembering to put Kavanaugh’s name in there. The first sentence of the press released read “President Trump’s selection of XX to replace Anthony Kennedy on the Supreme Court…..”
As Rick Perry would say, oops.
Also, the effort to paint Heritage and The Federalist Society as far-right organizations is utterly ridiculous. I’ve been to many Federalist Society events over the years and you run into as many people who fall into to the ideologically libertarian camp as you do hard right conservatives. In any case, to paint them as being outside of the mainstream is ridiculous.
This alone should be immediately disqualifying.
Trump, who won the election with help – whether it was decisive or not – of a hostile foreign power, is now nominating the very judges who will likely have to rule on his actions.
In any decent democracy this would be shot down immediately. Thanks to the GOP, the US no longer belongs to that category.
ETA: to make matters even worse:
Yglesias:
@drj: Brett Kavanaugh to @POTUS: “I have witnessed firsthand your appreciation for the vital role of the American judiciary.”
On the flip side it shows that Kavanaugh has a great sense of humor. He must have tried that line out while Trump was “appreciating” Judge Curiel.
As Doug points out, the commentary so far has ranged from canned to hysterical. His confirmation is very highly probable, and is unlikely to be the end of the world, or even R v W.
To be fair though, Democrats have cited more concrete reasons for opposing Brett Kavanaugh, as a specific judge based on his specific track record, than Republicans could come up with in 300 days for Merrick Garland.
Geoff Bennet is a WH correspondent for NBC news:
Source familiar tells NBC that Justice Kennedy had been in negotiations with the Trump team for months over Kennedy’s replacement. Once Kennedy received assurances that it would be Kavanaugh (his former law clerk) Kennedy felt comfortable retiring – @LACaldwellDC & @frankthorp
Pretty plausible in that it means Trump wouldn’t even have to pretend to do the work involved in selecting a justice.
Since when has quality of argument mattered? We’ve been hearing an argument for 18 months about “Collusion!” despite no evidence of collusion or even any evidence that anything Russia did or is accused of doing actually affected the election,
And it would be nice if NeverTrumpers who argue Trump is outside acceptable limits realized they’re on the same side as those who want the Heritage Foundation and the Federalist Society to join him.
Mike
@MBunge:
You really do live in a complete fantasy land where you ignore facts that are inconvenient…
I’m avoiding comment for the first day. It’s a bit of a garbage fire out there right now.
Ah, if Don the Con cared in the slightest what was good for the country, he’d have resigned around May 2017.
Apart from all political considerations (yes, I know …) Brett Kavanaugh – like Anonin Scalia, like Elena Kagan, and Ruth Ginsburg – is very qualified to be on the Court.
Then Mitch McConnell pulled that power stunt and poisoned the well for years to come. It was partisan enough before he poured gasoline on the Garland nomination and tossed the match. Clearly McConnell decided that this eventuality – 1st Gorsuch and now very likely Kavanaugh on the Court – was worth it.
The best part of this is that I honestly believe that Trump nominated Judge Kavanaugh because Kavanaugh now believes that presidents should not be subject to investigations and legal actions while they’re serving their terms. I suppose he had his Come to Jesus Moment after he helped to draft his ‘Reasons why Bill Clinton should be impeached’ memo, and he then realized that the day might come when Democrats might like to impeach a Republican president.
it’s like a rider in the Trump contract at this point. You must humiliate yourself in support of him.
@teve tory:
Remember when he required his cabinet members to grovel to him in public? This is the action of someone so massively insecure, so constantly needy of approbation that it goes beyond pathology.
@teve tory: In other words, it’s the best sex they ever had.
@Doug Mataconis:
Interesting juxtaposition in today’s NYT. David Brooks has a column on How to Raise a Conservative Justice which is actually a nice capsule history on how to buy the judiciary. Brooks, of course, thinks this is a good thing. Much of the column is on the influence of the Federalist Society. Being Brooks, he misrepresents the founding of the society as a group of students forming a debating society. Among the “students” were then Atty Gen’l Ed Meese, Solicitor Gen’l Robert Bork, Rep McIntosh, and Sen Abraham. He also skips over funding. SourceWatch lists the usual suspects; Koch, Olin, Bradley, Scaife.
Brooks also talks about Richard Posner and Ronald Coase inventing the “law and economics movement”. IANAL, and certainly not a legal scholar, but this always sounds a lot like substituting the economic judgement of judges for the political judgement of legislatures. Which is to say, judicial activism.
This is ironic in that next to Brooks column is a column co-authored by Eric Posner, Richard’s son, bemoaning that it is no longer possible to see the court as above politics.
And rightly so.
@Hal_10000:
Smart move. The hysterical still prevail………
https://www.youtube.com/watch?v=miZWYmxr8XE
It does not matter.
We’ll have hearings at which Kavanaugh will lie. Nothing will be learned. Susan Collins and Lisa Murkowski will vote with their party, Manchin, McCaskill and Heitkamp will probably flip. He will be confirmed with something like 53 votes. No we will not be able to stall until the mid-terms, and if we did it would likely be pointless since at this point we are very unlikely to flip the Senate.
I don’t want to sound stupid or anything, but is Brett Kavanaugh the guy who plays the manager on Superstore?
@Michael Reynolds:
You’re an idiot.
@Michael Reynolds:
And the sun will rise in the east tomorrow……
@SenyorDave:
You would think that at some point you would realize you can’t quite trust the media.
https://twitchy.com/gregp-3534/2018/07/10/and-down-it-goes-nbc-news-reporter-deletes-tweet-on-kennedy-wh-deal-to-pick-kavanaugh/?utm_campaign=twitchywidget
Mike
@MBunge:
Now, when do you suppose you’ll figure out not to believe Trump?
@Hal_10000:
A bit of a garbage fire? It’s a firestorm of garbage.
It’s real easy for certain people to react in a meh way to all of this–because this is the outcome they want…those same people will be falling apart, if, in a few years, the Dems do try to pack the court to make up for McConnell’s stealing of a seat…
@Michael Reynolds:
I’m shocked (shocked !!) A politician being a politician. But at least we know our health care premiums will go down $2500, and YouTube videos cause spontaneous riots, Lizzy Warren is an Indian, Harry Reid has secret friends who know Mitt Romney didn’t pay taxes, Republicans want to throw grandma over a cliff, Jeff Strozk executed his duties without bias, Hillary is a master cattle futures trader and thinks bleach bitting her computer means wiping it with a cloth, her husband did-not-have-sex-with-that-woman……..
Grow up.
@MBunge: There is a difference between errors in legitimate news reporting and the constant stream of pure lies Trump emits, and you sycophantically defend.
@Guarneri: Well, if we go by some of the antics the South got up to when it came down to identifying who was “a Negro”, you don’t need to have that many American Indian ancestors to make you “an Indian.”
I think the present legal barrier is 1/32 Amerindian background –> eligible to be considered “an Indian” enough for some federal programs. (I know this because one of my friends is one generation away from being “qualified”–he’s 1/64 rather than 1/32.)
So, it was McConnell who eliminated the filibuster for Supreme Court nominations. And, after refusing to hold hearings for Garland for over 300 days, is there any doubt that McConnell would have eliminated the filibuster for Gorsuch whether or not Reid had done so for lower court judges?
@Gustopher:
Yeah the Blame Harry Reid crowd neglects to mention that McConnell and the GOP were blocking 168 Judicial and Executive nominees, just to damage Obama. They were blocking Janet Yellin’s nomination to the Fed. They were blocking the head of Homeland Security.
Just saw something about Kavanaugh that really is an important issue. It seems he thinks ISP’s have First Amendment rights to select what websites they transmit. He has a written opinion where he lays out that ISP’s should behave like cable operators.
Why on earth would the FCC need to show this, when it’s bleedingly obvious to anyone who tries to buy broadband. I have exactly one provider available to me. How is that NOT market power?
Source: https://arstechnica.com/tech-policy/2018/07/net-neutrality-rules-are-illegal-according-to-trumps-supreme-court-pick/
@Jay L Gischer: Don’t know why, but the small town that I live in–population 26,000 with another “twin” city of 36,000 directly across the river has 4 broadband/wifi providers, so I can see where there may be some confusion/consternation or what not. Even so, internet service should be treated as a utility no matter how many purchase opportunities exist and Kavanaugh’s argument is crap.
ETA: After all, who is “the speaker” in the first amendment sense–the service system or the website?
@Jay L Gischer: A judge should not be bringing his or her own evidence into the courtroom, so it would be inappropriate for him to claim that an ISP has market dominance in a region.
I find his claim that ISPs have speech rights rather dubious though. Especially that they can block others’ speech as a part of their free speech — a contortion of free speech that makes free speech for everyone other than an ISP kind of moot these days.
Does your electric company have free speech rights? Can they shut off power for those whose speech they object to? Can your phone company decide that, frankly, you’ve called that friend too many times and it’s time to move on because she is never going to feel that way about you?
@Just The precise geographic details matter a whole lot for whether you have broadband options or not. And sometimes it depends on the whims of AT&T and the state of the copper leading into your house.
That is to say, when I bought the house a year ago, AT&T said they provided service. After three service calls, they changed that to “no service due to distance from node”. Which is utter bullshit, but bullshit I have no recourse from. I am left with Comcast as my only option, which I despise.
@Gustopher: I think he was referencing an FCC regulatory finding, not a court finding. Otherwise, we agree.
They guy is a partisan hack from the word go.
@Gustopher: On the other hand, Twitter has the right to shut off the President’s Twitter feed
Oh look, it’s the toddler calling the man childish…
With this crowd, it seems like the bigger the corporation, the more rights that entity is entitled to…
Can you imagine the conservative outrage if that happened…
@Michael Reynolds
Even worse, if Democrats do take “extraordinary measures” to try to stop this nomination (which let’s be honest really isn’t going to change the balance of the court that much. Kennedy was a fairly reliable conservative who very very occasionally voted with the liberals), they won’t have any powder left to fight a nomination that might actually matter … if a Ginsberg or Breyer seat comes open while Trump (or Pence) are still in the White House.
I would like to say that the best thing for Democrats would be a quick confirmation … but then many of the same type of people who stayed home in 2010 and 2014 might skip this one too, endangering the Democrats chances of even retaking the House.
Our country sucks right now. We have one political party that appears to be genuinely evil and another that is impotent, bordering on incompetent.
@An Interested Party:
They’d set up their own social network to compete, they’d demand charges (which?), Congress would carry out an investigation, popcorn prices would go through the roof.
At Lawfare Benjamin Wittes writes,
Wittes argues that everyone’s knee jerk reaction is overly simple, that Kavanaugh sees the need to be able to investigate the president, that he shouldn’t be indictable but under current law perhaps he is, that impeachment is the proper control, and that if not indictable, statutes of limitations should be extended til he’s out of office.
I have no idea how much weight to give this, and I regard any Federalist Society judge as unacceptable, but this could be interesting. Nate Silver observed that anytime we’re talking about immunity of the President, it’s bad for Trump.
@grumpy realist:
You need to address your comment to the applicant displaced by Fauxcahontas. I’d start with an apology.
@Todd:
“We have one political party that appears to be genuinely evil…..”
Paranoia strikes deep, into your life it will creep…….
@Jay L Gischer: I too have one broadband provider, and everywhere I’ve lived for the last 10 years had only one. Conservatives aren’t on the side of consumers, they’re on the side of big business. That’s why Kavanaugh also thinks the CFPB is unconstitutional. (BTW thanks CFPB for not letting Well Fargo defraud me, even though they tried to after they bought a bank in North Carolina that I used to have an account in, got my info out of a database, and signed me up for products and sent me bills.)
@Todd:
The essential tragedy of our age isn’t that the Republicans are villains, but that the Democrats are too. I know, I know…..
“We’re not villains,” they say. “They’re the evil ones.”
Thinking about the vast geographic area that’s been basically abandoned by theses “heroes,” the continuing devolution into ideological incoherence, and the reliance on racism and sexism as a sorting strategy, and I’m like, “Sure, dude, sure. They’re the evil ones.”
@James Pearce:
Oh, spare me the bullshit about abandoning vast geographic areas of the country. Those vast swathes we’ve abandoned survive on liberal programs, tax transfers from more successful states. Without 20 billion in farm price supports, food stamps, guaranteed loans, access to federal lands, extended unemployment benefits, social security and medicare half those states would be bankrupt.
And those same abandoned areas have disproportionate amounts of political power via a senate that gives South Dakota the same vote as California. They elect Republican senators and Republican governors so I’m failing to see why it’s the fault of Democrats that these states are in such bad shape. Was it Dems who destroyed the finances of Kansas? Was it Dems urging people in WV to stick with coal mining because global warming is a hoax?
Trumpaloons aren’t voting economics, the exit polls are clear on that. Trump voters are voting on social issues, which means that our ‘abandonment’ comes down to abortion, gay marriage, trans bathrooms, guns and immigration by brown people. Did we abandon flyover country when gay marriage was legalized? Do you want it made illegal again? Did we abandon flyover country by insisting that woman have control over their own bodies? Should we outlaw abortion?
Just for once, @Pearce, why don’t you nerve yourself up to take an actual position?
@Michael Reynolds:
Before you start patting yourself on the back, you need to consider that many of these places are barely surviving at all, even with your “liberal” policies and perhaps even because of them. (Some urban-minded autocrat that cares mostly about assuaging their own liberal guilt probably has nothing to say to the residents of Osh Kosh, Nebraska except for “The nearest Starbucks is 50 miles away and in a Safeway? What fresh hell is this?!”)
That’s how our system is set-up, and always has been. You think it’d be more inherently fair for the left to control the areas they’ve abandoned from their enclaves? Kansas? Kansas, the spiritual home of abolitionists and suffragettes, abandoned within a century to Sam Brownback and the only question so-called smart liberals can ask is “What’s the Matter With Kansas?”
No, what’s the matter with you?
@Michael Reynolds:
Immigration Bashing is All About Racism
@teve tory: One mistake I think people make is in thinking that “economic anxiety” and “racial resentment” can be totally separated from one another. I’m not convinced they can be. The connection is that people who are struggling economically find it easy to find another group to blame for their problems. The rise of Hitler would not have been possible if Germany hadn’t been in the throes of the Great Depression. Obviously, the present American economy is in a lot better shape than that, but there are lingering problems still felt by ordinary people, from stagnant wages to outsourcing of jobs. Trump’s message is essentially the same one Pat Buchanan ran on in the ’90s: the notion that the country’s economic problems stemmed from “real Americans” losing out to foreigners due to open immigration and free trade.
@Michael Reynolds: Pearce does have a position — Republicans may suck, but they constantly talk about how wonderful white men are and how much everyone else is inferior, and that’s the only issue that matters to him.
If the Democratic party ran on a platform on “white men get everything, the rest of you can go die,” he’d be the party’s biggest booster.
(Until that time he will return here and declare how offended he is at the suggestion and how charges of racism are all the Democrats have to offer. After all, he can’t help being superior by virtue of his race and gender, and it’s unfair to hold that against him.)
@Kylopod: From the link I posted, after the relevant chart in the study:
@wr: My position, since you’re so curious, is that, yeah, the Republicans are pretty awful, especially under Trump, but the Democrats are pretty bad too, especially under Trump.
As to your ramblings? Well, it’s amazing…