Trump nominates Brett Kavanaugh to the Supreme Court
Here's the most interesting thing about Kavanaugh: He worked on the Starr Report and took the position that Bill Clinton's multiple refusals to testify to a grand jury in connection with Starr's investigation were grounds for impeachment.
That particular position is not something Donald Trump will like.
At this point, his position on that matter is only a matter of passing interest. What matters to his confirmation is his view on abortion. As you may be aware, Republican senator Susan Collins will not vote to confirm any nominee unless she gets an iron-clad promise on Roe v Wade.
They won't directly go after Roe vs Wade...they'll just allow states a TON of leeway to effectively neuter it.
ReplyDeleteNo, they don't. Manchin and others voted for Gorsuch They'll likely jump ship again to keep their trumo happy regions pleased. Foolish move given the blue tsunami coming, but they did it before. They can lose Collins and still win.
ReplyDeleteI doubt it.
DeleteCollins won't bolt.
he gets confirmed 50-46. I doubt Heitkamp and Donnelly votes.
This article is the one he wrote.
His reasoning is a joke.
Section 3 of the 25th Amendment is the remedy for an indicted President.
Vice President takes over until the case is resolved.
Impeachment was probably designed for actions while President, not for actions occurred before they became President.
Manchin, Donnelly, and Heitkamp will probably end up voting for Kavanaugh, but only if there are enough votes to confirm him without them. I do not think they will cast deciding votes to confirm. It is possible that a Democratic senator might be willing to abstain from voting if Senator McCain might otherwise have to travel to Washington to vote. Such courtesy was once routine. For that matter, Susan Collins, if she decided to oppose Kavanaugh might abstain as a courtesy to McCain.
DeleteDoesn't matter what he thought about Clinton. He will think the exact opposite about Trump because *cough*bullshit*cough*blowjob*. That's the Conservative Game in 2018.
ReplyDeleteYep, expect a total flip flop on that old opinion.
DeleteOther than the Chief Justice presiding over a trial in the Senate, the Supreme Court has no role in the impeachment process. Impeachment is a political process and there is no appeal to the courts if the House votes articles of impeachment. I suppose there could be an argument over whether or not Trump would need to comply with a subpoena from Mueller that could end up in federal court. But Mueller is a special counsel, not an independent counsel. A special counsel reports to and is supervised by the Justice Dept. The Justice Department reports to Trump. So the question is not whether a president needs to comply with a legal subpoena (most would agree he does) but whether a special counsel can issue a subpoena over the president's objection. If it came down to that, Trump ordering Rosenstein (acting as AG in this case because of Sessions' recusal) to order Mueller to retract a subpoena there would undoubtedly be resignations reminiscent of Archibald Cox and the Saturday Night Massacre, but eventually the subpoena would be withdrawn. Trump doesn't want that because it makes impeachment more likely, but I think that scenario is more likely than Trump's lawyers arguing in court the president need not comply with a subpoena. But I could be wrong about that.
Delete“Kavanaugh has since argued that presidents should not be distracted by civil lawsuits, criminal investigations, or even questions from a prosecutor or defense lawyer while in office.”
ReplyDelete"If the President does it, it's not illegal." Richard Nixon.
ReplyDeleteSusan Collins hasn't said she needs an iron clad promise not to overturn Roe. What she said was she won't vote to confirm any nominee that has said they would overturn it.
ReplyDeleteIt is considered unethical for a nominee to discuss how they would rule on a matter that is likely to come before the Court. Therefore, Brett Kavanaugh is not going to make any iron clad promises, other than to interpret the law as written (which is the same thing Sotomayor and Kagan promised during their confirmation hearings.
The problem for supporters of Roe v. Wade is that the decision is all but unsupportable in terms of legal reasoning (the decision itself contains little reasoning). Rather, the argument is about stare decisis and when it is appropriate to overturn a precedent a Justice might feel was decided incorrectly. That will be a huge subject of discussion and debate during the confirmation process.
I think the odds of Roe being completely overturned are no better than 50/50. Chief Justice Roberts voted to preserve the Obamacare individual mandate, in my opinion, not because he really believed it was a tax, but because he sees it as part of his job to preserve the reputation of and respect for the Supreme Court. He did not want the Court striking down Obamacare with a 5-4 decision. I could see him doing something similar to avoid overturning Roe. Or Roe could be toast. It will probably be a few years before we know.
Many legal scholars disagree with you about the quality of the legal reasoning in Roe V. Wade.
DeleteYou can't just leave it hanging like that, Bryan and Darrow. What about the legal reasoning?
ReplyDeleteWell, as I said, I'm not a lawyer, I'm an economic historian, however I do have some knowledge of the general history of constitutional law, and I've taken part in related debates regarding gay marriage.
DeleteThe verdict was reached on the basis of the 14th Amendment, which was past as one of the post Civil War Reconstruction Amendments.
The 14th Amendment includes the Due Process Clause. The ruling on Roe V Wade argues that the Due Process Clause creates a right to privacy. Since I'm not a lawyer, I don't know the technical legal meaning of 'right to privacy. However, since I know about aspects of legal history, I know that Due Process and Equal Protection are the fundamental principles behind the Magna Carta.
At least when I was young, there was a false belief that the goal of the Magna Carta was to set the stage for democratic government. This is false. Those in England at the time, especially the wealthy landowners who forced the King to sign the Magna Carta were fighting to prevent Kings from enacting arbitrary laws.
Equal Protection was to ensure that unless with reason otherwise, a law had to apply to all people equally.
Due Process was to ensure that there were valid and sound reasons behind a law, that a law could not be enacted and enforced simply because the King had a whim.
So, this was why the whole trimester debate at the time of Roe V Wade was so important, the Supreme Court ruled 7-2 that the states had no valid reason to restrict abortion on the basis of evidence: i.e medical science.
Though they ruled based on the 'right to privacy' the ruling was essentially based on the concept of preventing arbitrary laws.
"No valid reason to restrict 1st term abortions" to be more precise.
DeleteSince I'm aware of some of the counter-arguments, the main counter argument is that this was not how the 14th Amendment was originally interpreted and that, therefore, the Supreme Court was filled with 'activist liberal judges' who were striking down laws that had been passed by legal and duly elected legislatures.
From what I've been told in debate, the more precise basis of this argument, is that as the 14th Amendment was a Reconstruction Amendment, it was only meant to apply to Civil Rights (for blacks) cases and that, had the states known when ratifying the 14th Amendment with the Equal Protection and Due Process clauses, that the courts would strike down their laws on the basis of lacking a sound evidential basis, that the states never would have ratified it.
I believe there are three conservative legal philosophies: originalism, textualism and strict constructionism. One of these philosophies anyway, argues to look at the arguments made behind the Constitution and the Amendments and that, in doing that, it is clear that the 14th Amendment was only meant to apply on the basis of Civil Rights (for blacks.)
The liberal reply is essentially, if the 14th Amendment was only meant to apply in those narrow cases, it should say that, but it doesn't.
The Liberals then argue that conservative jurists essentially hop between these three alternative philosophies on interpreting the Constitution to find that one that fits their own preferences.
From my perspective, the primary basis of any Constitution is to prevent the enactment and enforcement of arbitrary laws, so I'd argue it's the exact opposite of the case of Roe V Wade having 'no legal reasoning.'
I don't know if Michael McChesney has any other arguments to claim that Roe V Wade was based on other invalid legal reasoning, but those are the arguments that I'm familiar with and that I've read.
Though I think it's obvious which side I'm on, I think I have tried to be fair to explain the arguments of the other side, as limited as my knowledge is on their arguments on the history of the 14th Amendment or on any other arguments they may have.
The conservative argument against Roe V. Wade is not that the Equal Protection and Due Process Clauses only apply to freed slaves. The Due Process Clause has been interpreted to incorporate those rights in the Bill of Rights that are fundamental to ordered liberty. The argument against Roe is that there is no general right to privacy in the Bill of Rights. In 1965, the Supreme Court discovered a general right to privacy in "the penumbras and emanations of the Bill of Rights." In 1973, the majority said this right of privacy included the right to an abortion.
DeleteWhen I said Roe contains little legal reasoning, that's because most of the majority decision is a discussion of medical science, not law.
The conservative argument against Roe is that there is no support for a general right of privacy, much less a specific right to abortion in the text of the constitution. Regardless of your moral views about abortion, you might agree that allowing Supreme Court Justices to find support for their preferred policy outcomes in the penumbras and emanations of the text is the same thing as saying they can substitute their own preferences for the law as written. If conservative judges and Justices didn't feel constrained by the text of the Constitution you could not only have a decision overturning Roe, but one that declares a fetus a person entitled to equal protection of the law, thus making all abortion illegal in every state. Instead of state court decisions interpreting state constitutions as requiring a certain funding level for education, you could have state courts invalidating teacher contracts that make it difficult to fire underperforming teachers. If I wasn't so tired, I could probably come up with a third horrible example.
The point is that if judges and Justices have to stick the text of the law, their own personal preferences become less of an issue.
The Liberals then argue that conservative jurists essentially hop between these three alternative philosophies on interpreting the Constitution to find that one that fits their own preferences.
ReplyDeleteShould say "to find the one that supports the verdict they want to reach in the case."