How much longer are conservatives going to continue playing this cat-and-mouse game with the courts? Democrats have demonstrated that through their ideological extremism and shamelessness, they will savage any nominee, whether he is in the mold of Anthony Kennedy or Clarence Thomas. They will accuse us of litmus tests and having guarantees, as they absolutely have from every one of their lower court and Supreme Court nominees. So why not actually nominate a guaranteed Clarence Thomas who is unashamed to articulate the authentic view of the important constitutional clauses without playing the game of agreeing with premises of people who will never vote for you anyway?
After subjecting myself to the torture of watching most of the 12-hour marathon hearing yesterday, I’m sick to my stomach watching the behavior of the Democrats on display. But as we militate against their extremism, are we sure that our nominee is really what we’ve been waiting for all these years? Remember, even Elena Kagan would appear reasonable and even somewhat conservative compared to the bloodhounds on that committee.
Here are my top nine observations and takeaways from day one of the questioning:
1) Roe and Casey are going nowhere: Rather than working on returning the issue to state legislatures and state courts, Republicans have campaigned for years on simply “appointing better judges” to overturn bad decisions, such as Roe v. Wade. Democrats have full commitments from their nominees on this issue and others. They accuse GOP nominees of being the same, but the funny irony is, as conservatives, we truly don’t know where they stand. We know Thomas would overturn it and Alito is very likely to do so. I would submit that hell would freeze over before Roberts agrees, and Gorsuch is still an unknown. Kavanaugh is no different.
When prompted by Feinstein on Roe and Casey, Kavanaugh emphatically referred to these cases as “precedent upon precedent.” It seems that with every new GOP nominee, with the exception of Alito, the nominees get more categorical with their agreement that Roe is settled, and it seems that Kavanaugh used the most unqualified language. He could have asserted the Ginsburg standard and remained neutral, or he could have gone the Alito route and said that all precedents deserve special consideration, but they are not infallible and that he’d have to judge each case. No such qualification was given. Anyone who tells you he is likely to overturn Roe is lying. We just don’t know, and he certainly indicated the opposite. This was the 45-year promise, and it’s gone.
2) Abortions for illegal immigrants? One of the most egregious opinions of the past year was a D.C. Appeals Court decision that illegal aliens have the right to break into this country and demand direct access to an abortion. This has spawned abortion chain migration, wherein a number of people are coming here for abortions because Mexico doesn’t allow elective abortions. Judge Kavanaugh dissented on grounds that, even allowing for Roe and Casey as precedent, this opinion dramatically expanded the scope of the “right” to an abortion. However, he didn’t sign on to the separate dissent from Judge Karen Henderson noting that the entire premise of the question is that illegal immigrants have a right to be here and make demands, a violation of the most settled law and principles of our country.
Unfortunately, when prompted to discuss the case by Senator Durbin, Kavanaugh made it clear that had the immigrant in question been an adult (according to the DOJ, she actually was 19 and lied about her age), he would have said she was entitled to an abortion. Given that national sovereignty is the most important issue being destroyed by the courts, and given that Gorsuch was to the left of Kennedy and Roberts on a very important facet of it, this should disturb conservatives. Was it really so hard to tell members that, even if Roe is settled, legal immigrants don’t have all constitutional rights, such as donating to political campaigns and owning a gun, so certainly illegals doesn’t have a court-created right to an abortion? Yet Kavanaugh touted the fact that he didn’t join Henderson’s indispensable dissent and told the petulant Sen. Hirono that all “persons” have rights in this country.
3) Have we agreed to turn immigration and sovereignty into Roe and Obergefell?
As noted, immigration is the biggest problem in the courts now. We are on the cusp of doing to sovereignty what was done to life and marriage. If there was ever an issue where we would want certainty from our nominee (with control of the Senate), it’s on immigration. No Republican expressed any interest in asking about his philosophy on the plenary power doctrine. We are left with just what Democrats got out of him, which is not good (see above). No Republican pushed back on this issue and showed the Democrat hypocrisy on precedent – that they treat abortion as precedent, yet in the very same case, ignored 130 years of plenary power doctrine on immigration.
What is the plenary power doctrine? Congress and the president have the full power to deny entry to any non-citizen or class of non-citizens seeking to enter this country for any reason – good or bad. Those decisions are exclusively up to the political branches of government, to be debated in the political realm, and there is no opening for the courts to get involved. This principle “has become about as firmly embedded in the legislative and judicial tissues of our body politic as any aspect of our government,” not “merely” by “a page of history … but a whole volume” (Galvan v. Press). The concept is “inherent in sovereignty,” consistent with “ancient principles” of international law, and “to be exercised exclusively by the political branches of government.” (Kleindienst v. Mandel). Was no Republican, including Kavanagh, capable of articulating this as super-duper precedent?
4) The concern over the administrative state seems to trump other issues for both sides: Much of the questioning dealt with Democrats concerned that Kavanaugh would rule against the unaccountable “fourth branch,” the administrative state. Republicans were concerned that the administrative state has too much power and were encouraged by Kavanaugh’s record on the issue. Kavanaugh is definitely good on the issue from a conservative perspective. But it’s bizarre that Republicans seem to care about striking down administrative policies they disagree with, but had no time for any questions about striking down policies that bear on our entire civilization. Almost none of my list of 15 vital questions were addressed.
5) Kavanaugh seemed to agree with judicial supremacy: No member directly asked the most important question: Who has the final say in constitutional interpretation? But it was clear from Cornyn’s line of questioning and Kavanaugh’s answer that they both believe the courts are the final say over any political issue they wade into unless there is a constitutional amendment. That is simply not true. Also, Kavanaugh cited U.S. v. Nixon as one of the four best moments of the judiciary. It was in this case, piggybacking on the supremacist legacy of Aaron v. Cooper, that the court became the “ultimate interpreter of the Constitution.” Executive overreach can always be rectified through statutes and the power of the purse. But if we accede to judicial supremacism, which even the conservative members have done, then there is literally nothing we can do after the judges unilaterally amend the Constitution except for amending it back. Of course, none of this is true, and there is a lot Congress can do.
6) Everyone ignores legislative power: To his credit, Kavanagh did speak about the importance of the legislative power of the purse. However, it was amazing to watch both parties bemoan the power of the executive branch while exalting the majestic power of the judicial branch – all the while ignoring the irony of how Congressional Republicans are rubber-stamping the current leftist policy agenda with a budget bill that funds everything they supposedly hate. They could defund many court outcomes and executive policies and offices they disagree with, but are crying about the power of the other branches. Their power over the purse can essentially determine every issue. If they don’t like certain administration policies, why are they not simply defunding them rather than crying to the courts?
7) It’s amazing that the power of lower courts has never come up: The lower courts are deciding most of the consequential issues of our time, given that SCOTUS only takes up 60 of 50,000 cases a year. Nobody asked Kavanaugh about the power of lower courts, except, to his enduring credit, Senator John Kennedy did ask about the growing trend of universal injunctions by district judges. Not surprisingly, because it’s a pending issue, Kavanaugh declined to comment. How will we ever fix the judiciary if we don’t know where our own nominees stand on so many bedrock constitutional principles and the Left knows 100 about its nominees? I’m fine with stripping the courts of power over political precedent and ending this entire charade, but if we are merely going to play the Left’s judicial game and only try to get in “our guys” when we are in power, for goodness’ sake, let’s make sure we are getting in our guys.
8) It’s never enough for the Left: Kavanaugh incessantly spoke of that fact that he went out of his way to hire more female law clerks and minorities, yet it didn’t satisfy the Left and they still accused him of supporting racism and a poll tax. Also, he actually authored an opinion that served as the basis for John Roberts upholding Obamacare’s individual mandate as a tax, yet they still accused him of ripping breathing tubes out of people’s noses. When will we learn you can never run from a barking dog and hope to escape? Why not confront them head-on, especially when none of them will vote for a Trump nominee anyway?
9) The gap between the intensity of beliefs in the two parties: Finally, watching the hearings the past two days, it was evident during every minute of it that Democrats believe their radical views with every fiber of their being and are willing to champion them boldly and proudly while pursuing every strategy to enact them. Republicans are diffident in their views on the law and the Constitution and operate within the premise of the Left. The laws of political gravity and motion dictate that the inertia will only head in one direction over time.
Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.