This week, we’ve taken a brief look at the “evidence” opponents of nominee Brett Kavanaugh have attempted to martial against him. Our examination of the “evidence” has necessarily been brief because the evidence itself is scant to negligible. Beginning with the top-level messaging that Judge Kavanaugh is “poised to overturn Roe,” we saw that while Kavanaugh has nowhere and at no time said this, he has made it clear that constitutional arguments stand and fall on the constitutional text and history, exactly where they should be. So while no one can predict how any particular judge will vote on a specific case, we can say with a high degree of assurance that Judge Kavanaugh is unlikely to be a friend to the kind of results-driven judicial activism that gave us the so-called “fundamental right to abortion” in the first place.
Hopefully, the debate over this nomination will raise awareness of what Roe actually held – a needful thing, when many, especially younger Americans, don’t even know what Roe held or that it involved abortion. If we could have a national town hall meeting on what happens after a repeal of Roe leaves the issue to the states, we may be able to set aside (or disregard) the “sky-is-falling” rhetoric that clouds our judgment.
This apocalyptic rhetoric against the Kavanaugh nomination has stirred up an obnoxious cloud of muck and detritus that threatens to obscure the candidate’s exemplary qualifications for the Supreme Court. When a Salon writer charges that his object is “dismantling democracy and ending reproductive rights,” or pro-abortion activists call him a “frat boy” and allege that his nomination is just “political payback,” well, “Houston, we have a problem.” But the problem is with our rhetoric, not our nominee. As we observed this week, quoting the Ethics and Public Policy Center’s Ed Whelan, “the Democrats really have no ammunition.” Against this is a lengthy public record as an influential judge on the most respected federal appeals court in the country, a tenure in which he has written 307 opinions on an extensive array of topics – far more than many other nominees to the Court, including Chief Justice John Roberts. And his nomination has garnered strong support from his former law school, with stanzas of praise penned in the national media by a Yale Law School Dean, Amy Chua, and a well-respected liberal Yale law professor, Akhil Reed Amar.
In light of this, supporters of Judge Kavanaugh should simply, as the saying goes, “Keep calm and carry on.” Senate Majority Leader Mitch McConnell has promised a Senate Judiciary hearing on the nomination within a few weeks and a Senate floor vote shortly thereafter, and there is little that opponents can do to derail Kavanaugh, now that the “filibuster rule” that would have required a supermajority to support him has gone by the boards. Next week, we’ll take a closer look at what’s going on behind the scenes at the Senate Judiciary Committee as it prepares to hear Brett Kavanaugh’s nomination.