Advertisements

For Kavanaugh, Because Why Not?

President Donald Trump has nominated federal appellate judge Brett Kavanaugh to replace retiring Justice Anthony Kennedy on the Supreme Court, which is a quite fine pick as far we’re concerned. That’s just our opinion, though, and we expect the rest of the country’s hearted arguments about it will last long after his inevitable confirmation.
Anyone that Trump or even a more normal Republican president might have nominated would have met outraged opposition from the left, of course, but in these strange days a certain portion of the right is also disappointed by the choice. Kavanaugh has a long record on the federal bench of deciding cases based on the objective facts and the most plain reading of the constitution that conservatives such as ourselves have always insisted on, but he only got the chance because he appointed to the federal bench by Republican President George W. Bush after exemplary service in the Bush Justice Department, and these days that certain majority portion of the Republican right has as much disdain for the Republican party prior to Trump that they have for the Democratic left.
There were reportedly even more provocative potential Supreme Court nominees among the semi-finalists and finalists in the reality-show roll-out of Kavanaugh’s appointment, but the left will surely still muster its full outrage about the appointment. The left has good reason to fear the Roe v. Wade decision legalizing will be overturned, the Obergefell v. Hodges decision legalizing same-sex marriage will be undermined by conscience exemptions for Christian baker and wedding photographers, and that the District of Columbia v. Heller decision affirming an individual’s right to keep and bear arms will be bolstered, and that Citizens United and Gore v. Bush and all the other decisions that so outraged leftist sensibilities will never be overturned.
None of which bothers us much. We rather like that Kavanaugh has a Bush pedigree, as we much preferred that era of the Republican party, and even the most “burn it down” sort of conservatives have to admit that any Supreme Court appointee  with any credible credentials that Trump might choose got his or her shot because of that hated pre-Trump Republican establishment. As for all those complaints from the left, we’d offer the same rebuttals on behalf of Trump’s nominee as we would for any old nominee any old Republican president might have picked.
Harvard’s notoriously contrarian Law Professor Alan Dershowitz hA lately a Trump apologist about the “Russia thing” but is now alarmed that the Supreme Court will find a constitutional right to life at the moment of conception and thus ban all abortions, as that is indeed the logical conclusion of right-to-life absolutism, and although much of the left is sounding the same alarms we think it’s overwrought. The far more likely outcome is that the Supreme Court will overturn Roe v. Wade, and thus return America to the day before’s law that each of the 50 states could regulate abortion as they chose, and although that that promises and insufferable debate and poses a damned complicated moral issue it’s a clear-cut political victory for the left.
The occasional same-sex marriage will likely continue to happen even with Kavanaugh on the Supreme Court, and with Kavanaugh on the Supreme Court ourt it will be more likely that the occasional bakers and photographers and others will decline to participate, but in both cases we can live with that. We somehow have a rather fancy handgun hidden somewhere in our home, and our plain reading of the Second Amemdment’s not-all-clear language assures us we have every right to do so, but our liberal friends can be reassured we have no intention to shoot them. As far as our ink-stained First Amendment sensibilities are concerned the Citizens United case was about the government’ attempts at prior restraint of a documentary critical of that awful Hillary Clinton woman, and even if there was corporate money involved we thought it a sound decision. That Gore v. Bush decision seemed sound to us at the time and still does, no matter how the current Republican party might hate anything with the word “Bush” in it, but by now even our most bitter liberal friends are largely over it and even pining for the good of days of Bush.
Long before Trump signed on with the Republican party we’d assured our liberal friends that a strict adherence to the Constitution doesn’t threaten liberal values, as the Constitution is still, even by modern standards, a radically liberal document. We like to to point the example of Justice Hugo Black, the ex-Ku Klux Klan leader that iconic Democratic President Franklin Roosevelt appointed in order to appease the white southern racists who were then a key component of the Democratic coalition, and who went on to be a hero of the Supreme Court’s civil rights revolution because yeah, that 14th amendment’s plain language made clear that even separate-but-equal discrimination wasn’t constitutionally permissible, even if the unrepentant racist still thought that it was a damned fool idea.
Even so, we don’t trust anybody these days. We note that Kavanaugh was first appointed by a Bush, and was long opposed by the left, and is now likely elevated to the Supreme Court by the newly reconfigured Trump Republican party, and we have to admit that until the last few days we’d never heard of Brett Kavanaugh. On the whole, though, we’ll pays our money and takes our chances on the guy.
Maybe it’s the impressive Ivy League academic records or the prestigious Bush-era appointments or the impeccable streak of rulings based on the the facts and the law, but Kavanaugh strikes us as the kind of guy who’d be reluctant to overturn that long-ago United States v. Nixon decision that compelled a president to cooperate with a investigation into his various alleged wrongdoings. During his acceptance speech on live television Kavanaugh had some embarrassingly fulsome praise for Trump’a deep and abiding respect for the judiciary — even prior highly-praised-by-the-right appointment Justice Neil Gorsuch admitted he was embarrassed by Trump’s frequent “tweeted” attacks on the judiciary — but once he no longer has to go along to get along we hold out hope a Justice Kavanaugh will confront Trump’s inevitable upcoming legal battles strictly according to the facts and a plain reading of the Constitution.

— Bud Norman

Advertisements

The Abortion Debate Resumes

Even after all the decades since the Roe v. Wade decision was handed down by the Supreme Court the abortion debate still rages, but we’ve noticed in recent years that it rarely shows up on the front pages of the newspapers or the top of the cable and network news broadcasts. The upcoming battle over the appointment and confirmation of a replacement for retiring Supreme Justice Anthony Kennedy is bringing the long-simmering battle back to the figurative front-burner of American politics, however, and we’re already dreading what will ensue.
Here in our usually placid hometown of Wichita, Kansas, the abortion debate has always been especially acrimonious. The very interesting mother of a very interesting high school friend of ours was picketing on the sidewalks outside a local Wesleyan hospital even before the Roe v. Wade decision was passed, and the abortion debate has played an outsized role in local and state politics ever since.
Although Wichita and Kansas are unusually church-going and conservative places by modern secular standards, the state somehow wound up with the most permissive abortion laws outside of China and its one-child policy, and the city was long home to one of less than a handful of doctors in the entire world willing to perform the third-trimester abortions that even the Roe v. Wade decision allowed states to restrict, which our many years of Republican legislatures and Republican governors somehow never got around to restricting. The massive gulf between public opinion and public policy enflamed passions on both sides even more than in the rest of the country, and things got unpleasantly heated around here.
Back in ’91 the radical anti-abortion group Operation Rescue came to town for a “Summer of Mercy” that involved physically blocking access to the city’s three abortion clinics, all owned by the doctor who performed those internationally controversial third-trimester abortions, and we still remember it as the hottest summer ever around here, notwithstanding the higher temperatures of other summers. Hundreds of church-going and baby-having and lawn-mowing upright citizens willingly went to jail the cause, hundreds of other church-going and baby-having and lawn-mowing upright citizens stopped talking to their neighbors and longtime friends as a result, and we know of at least one marriage because of all the acrimony, and countless Wichitans with no strong feelings about abortion were inconvenienced by the traffic tie-ups next to the main clinic along the crucial Kellogg Avenue freeway on their way home from work.
We were reporting for the local newspaper at the time, which still had a wide readership at the time, and despite our best efforts to be objective and factual about what was going on the sidewalks of Wichita we and our equally objective and factual colleagues wound up incurring the wrath of people on both sides of the debate. Journalists from around the country and the entire world wound up sharing a beer with us at a tavern next door do the clinic on Central Avenue, as the protests brought unexpected attention to Wichita from pretty much everywhere, and they all had the same complaints about how their determinedly objective and factual accounts were received.
In the end, though, Operation Rescue’s radical stand against abortion and its civil disobedience tactics got the worst of it both here and around the world. The most enthusiastic supporters of abortion rights were predictably outraged, the more mainstream anti-abortion groups distanced themselves from Operation Rescue’s civil disobedience tactics, and Congress wound up passing and President Bill Clinton wound up signing some tough laws about access to abortion clinics that those church-going and baby-having and lawn-mowing upright Wichitans did not dare defy. Despite Republican legislatures and Republican governors, that internationally controversial Wichita abortionist continued to perform third-trimester abortions next to Kellogg Avenue in Wichita.
The anti-abortion forces did succeed in making opposition to the practice a litmus test for any Republican candidate seeking any sort of office, no matter how he strident he might be about a tax cuts or deregulation or any other Republican position, but despite Republican majorities in the legislature and Republican governors they somehow never did succeed in imposing the constitutionally permissible ban on third-trimester abortions. That matter was instead settled when a radicalized anti-abortion activist came down from Kansas City and shot Dr. George Tiller in the head during a worship service on a sunny Sunday morning in ’09 at a lovely Lutheran church way over on East 13th Street.
All of the mainstream anti-abortion groups denounced the assassination, and all of the world press we met while covering the trial on a freelance basis seemed slightly disappointed that a church-going and conservative Wichita jury found the assassin guilty after an hour’s deliberation after a trial where the defendant freely admitted his guilt, and since then there have been no third-trimester abortions performed in Wichita. State law somehow still allows any doctor to do so, but no one has dared to do so, and since then Kansas has been more involved in debates about tax cuts and voting regulations and trade policies and other desultory matters.
Since then a majority of Ireland has voted to repeal that very Catholic country’s strict anti-abortion laws, and Mississippi and a couple of other proudly Protestant southern states have passed restrictive anti-abortion laws that press against the limits of the Roe v. Wade decision, but here and around the world the the abortion debate has gotten less ink and airtime than those desultory debates about tax rates and trade policies and the “Russia thing” and the latest outages about President Donald Trump and all the rest of it. As maddening as it all is, we preferred it to the abortion debate.
Justice Kennedy’s retirement and Trump’s power to appoint his replacement brings all the abortion issue acrimony back to the front burner of American politics, though, and there’s nothing we can do about that. Back when Trump was a Democrat he was staunchly in favor of abortion rights, even unto that third trimester, and our guess is that the first abortion bills that passed Trump’s desk were quickly paid, but ever since he decided to run for president as a Republican he’s been even more stridently anti-abortion than even the mainstream anti-abortion groups, and by now one side is hopeful and the other side is fearful that Roe v. Wade will be overturned. The contrarian Harvard Law professor Alan Dershowitz is somehow a conservative hero for defending Trump in the “Russia thing,” but he’s worried that five-to-four Trump majority on the Supreme Court will result in an opinion banning all abortions on the grounds of a constitutional right to life at the moment of conception, and the better bet is that Trump’s pick will result in all 50 states arguing about abortion without any constitutional restraints.
We don’t see that ending well for anybody, and especially the Republican party. To this day we’re too objective and factual to declare any moral stand on the abortion issue, although we’re still guilt-ridden about the third-trimester abortions of viable fetuses that occurred in our hometown and the cold-blooded  murder of the doctor who performed them, but we can’t see how it’s a winning play for the proudly adulterous Trump or his family values Republican party. Our long and desultory experience of the abortion debate around here tells us that nobody is ever persuaded by any argument the other side might make, that the debate is inevitably murderous no matter which way you look at it, and in the end most of America is just hoping for an easy drive home from work.

— Bud Norman

Kennedy Hands Trump a Final Win

Supreme Court Justice Anthony Kennedy announced his retirement on Wednesday, which is good news for President Donald Trump. No matter how many porn stars Trump pays or longstanding allies and trading partners he needlessly alienates or essential institutions he seeks to undermine, his die-hard defenders can always make the strong argument to pre-Trump conservatives such as ourselves that we’re better of with him making Supreme Court picks rather than that awful Hillary Clinton woman.
Trump got his first chance to pick a Justice because Republican Senate majority leader Sen. Mitch McConnell — now widely reviled by the Trump-ian party as a squishy establishment type — ruthlessly held the seat open through the last year of President Barack Obama’s second term following the death of reliably conservative Justice Antonin Scalia, and Trump’s choice of the equally rock-ribbed Justice Neil Gorsuch further endeared him to his loyal supporters and earned begrudging praise from his party’s last skeptics. Kennedy’s retirement gives Trump an opportunity to replace him with someone even more rock-ribbedly conservative, and although we’re sure he’d appoint his abortion-loving appellate judge sister or idiot-sin-law to the seat if he thought he could get away with it, we’re also sure he’s shrewd enough that he’ll once again let the Heritage Foundation choose someone the fans will love and the conservative skeptics will begrudgingly respect and the Democrats can’t come up with any persuasive beyond-the-pale arguments about.
Kennedy was appointed to the court by President Ronald Reagan and confirmed with unanimous Republican support and several Democratic votes in the Senate, and he was not a judicial activist type who thought that whatever the consensus of liberal opinion believed was constitutional, but neither was he a reliably conservative vote in controversial cases. He acquired a reputation as the rare “swing vote” on the Supreme Court, and for whatever idiosyncratic reasons he frequently wound up on the winning side of many five-to-four decisions that wound up outraging the left some of the time and the right some of the time. In his final session he provided Trump with some much-needed five-to-four wins on the travel ban and a California case involving the free speech rights of anti-abortion advocates and another matter about the power of public unions, but his replacement will likely provide both the Trump-ian and pre-Trump conservatives with even more five-to-four wins over the coming decades.
There’s already concern on the left that the Supreme Court might even undo the 1973 Roe v. Wade decision that found a right somewhere in the penumbra of the Constitution for abortion in the first trimester and exceedingly complicated cases afterwards, which is well past the panic by point even by the left’s panicky standards, but they don’t have much power to stop it. They’ll put up a good fight in the Senate confirmation process, and do whatever they can with the filibuster rules the Republicans used to rely on in their days on the political desert, and make a not-quite-convincig argument that because Obama’s appointment had to await the next presidential election Trump’s pick should await the next mid-term election, but they’ll wind up with Trump winning a more conservative Supreme Court for a long while.
As much as we hate to see it redound to Trump’s political benefit, that’s fine with us. We’ve always believed the Constitution says what the words written in it say, and not whatever the current consensus of liberal opinion is, and we have to admit we do shudder to think of the nominees that awful Clinton woman would have chosen. If Trump’s picks prove the strict constructionists the Heritage Foundation claims they are they’ll probably uphold a special counsel subpoena of the president, and even if the Court does undo Roe v. Wade it will just set off 50 state legislative battles and countless street brawls which the rather recent and obviously insincere pro-life convert Trump will mostly lose.
No matter how stellar a pick the Heritage Foundation comes up with, however, we’ll still be infuriated by almost everything else Trump is doing.

— Bud Norman

The Supreme Court and the Resulting Squabbles

So far as we can tell from the initial news reports, President Donald Trump’s Supreme Court nominee Neil Gorsuch seems like our kind of guy. By all accounts, including those of The Washington Post and The New York Times and other unenthused media, federal appeals judge Gorsuch is a staunch originalist who insists on a plain sense reading of the Constitution and has a personal reputation that has thus far been unblemished by decades in public life, which is basically what we’re looking for in a Supreme Court Justice. We expect that the Democrats will come up with something, and that quite a fuss about it will ensue in the confirmation process, but at this point we are cautiously hopeful that he will take his seat on the court and do a fine job there.
It will be interesting to see what the Democrats will come up with. The initial reports from even the most unenthused media are for now scandal-free, they all acknowledge his very diplomatic stye of adjudicating and exquisitely careful use of the English language, and he’s a rather handsome and reasonable seeming fellow who doesn’t sport that creepy facial hair or menacing scowl that made President Reagan’s unconfirmed nominee Judge Robert Bork so easy to “bork.” The opposition will therefore probably focus on his staunch originalism and its crazy notions about interpreting the Constitution according to a plain sense of reading of its text, rather than finding some convoluted reason that the Constitution insists on whatever the left’s favored position of the moment might be, but after the last election they’re hard pressed to make the argument.
For longer than Gorsuch has been in public life we’ve tried to reassure our liberal friends that a truly conservative Supreme Court Justice should not trouble them, as he is by definition committed to upholding both the letter and spirt of a radically liberal Constitution. We like to cite the example of the great Justice Hugo Black, the former Ku Klux Klan bigwig appointed by President Franklin Roosevelt to appease the substantial southern redneck portion of the New Deal Coalition, who went on to be one of the heroes of the Supreme Court’s 1950’s civil rights revolution. In our teenaged years we worked at the Supreme Court with some savvy veteran black messengers who had daily dealings with Black and assured us he never did get over his Klan days when it came to dealing with black people, but the old cracker’s hidebound adherence to a plain sense reading of the 14th amendment compelled to him vote with the Warren Court on most of the big civil rights, even if he did think that America did a damned fool thing in ratifying it, and to write that common sense concurring opinion to Brown v. Topeka Board of Education that is so much more convincing than the wimpy social-science majority opinion.
A truly conservative Supreme Court would uphold the right of a citizens group to air an anti-Hillary Clinton movie even it did get some money from the evil Koch Brothers, as the Supreme Court did in the still hotly-debated Citizens United Case, but by now it would also let Lenny Bruce or any other foul-mouthed comedian, no matter how Democratic, get away with it, so for now we cautiously entrust the First Amendment to the Republicans. The Republicans are at least as staunch on the Second Amendment as on the First, which will surely enrage the Democrats further, but they’ve lately been losing in the courts on that and will have a harder time in the court of gun-owning public opinion> For the past 40 years or so the right has been skeptical about those penumbras and legalistic whatnots that yielded a constitutional right to abortion, which enrages the Democrats further yet, but a truly conservative Supreme Court would overturn a fundamental right to abortion without asserting a fetal right to life and send it all back to the states where such measures were once decided, and if the Democrats really have a winning issue it would work out to their benefit, and although there would be a lot of fuss involved it’s not as if Roe v. Wade ever ended the issue. A truly conservative Supreme Court wouldn’t impose a liberal agenda by judicial fiat, but it wouldn’t stop the people from doing such foolish things through the constitutional process.
By the end of it the Democrats will probably be opposing Gorsuch simply because he’s Trump’s nominee, and we have to admit that’s somewhat compelling. We don’t trust Trump any further than we would toss his fat orange ass, as the local saying goes, but we always figured that he could never back out of those promises he made regarding the Supreme Court. The most persuasive argument Trump’s campaign offered to reluctant Republicans was that his Supreme Court nominees would at least be better than what Democratic rival Hillary Clinton would offer, which was pretty much indisputable, and we figured he was savvy to realize that although he could indeed shoot someone on Fifth Avenue and not lose any supporters that betraying the Supreme Court promise would have been politically disastrous. For all our misgivings about Trump we like the pick based on what we know so far, and cautiously hope Gorsuch will go on to overturn that awful Kelo decision that Trump once tried to use to evict an elderly widow and draw a line on executive actions by either party’s president and otherwise uphold our radically liberal Constitution according to truly conservative principles.

— Bud Norman