October 8, 2018

While waiting on Saturday afternoon for the full Senate to vote on the confirmation of Judge Brett Kavanaugh –- suffering through Sen. Chuck Schumer asserting, incredibly, that it will be impossible for Kavanaugh to rule impartially after this nomination process (!!!)  –- I thought it might be a good time to mute the TV before I kicked it in and reply to a few readers, including a couple who have minor bones to pick.  I got quite a few letters after writing about “leftists showing us what they really are.”

First, from reader Sam J.:

“(You say):  ‘It’s clear now: NOTHING matters to these people other than getting their way.’  That's true of the Democrats, but it's also true of the Republicans.  It seems that all Republicans care about is getting Kavanaugh confirmed.

“The truth is, Kavanaugh was a poor pick by Trump for the Supreme Court.  A pro-life nominee like Amy Coney Barrett would have been so much better.  Kavanaugh is a stickler for precedent and has called Roe v. Wade "the law of the land."  Anyone who thinks he'll help overturn that decision is extremely naive. I don't really think he's that pro-life.  If he's confirmed, I suspect he will be a huge disappointment to conservatives, just like Roberts, Souter, etc., have been in the past.  Haven't we been fooled so many times before?  As the saying goes, fool me once, shame on you; fool me twice, shame on me.

“I am praying for God's will to be done, whatever that is, and I encourage others to do the same.”

A:  I’m definitely with you on the praying part, but I’m not sure any of us can predict how Kavanaugh will rule on any given case, and that’s not supposed to be the rationale behind judicial appointments, anyway.  Roberts’ ruling was a disappointment not simply because it failed to strike down a law we didn’t want or agree with, but because it showed that in order to reach that decision, he was willing to depart from clear Constitutional principles in a way that stunned us.

At this point, I’d hate to second-guess the President’s pick, certainly before he’s even taken his seat.  But we know that nominating someone who’s been labeled a religious-right, pro-life ideologue, as Amy Coney Barrett has been, would have sent the left off its collective nut.  To those who think the confirmation process couldn’t get any worse than it did with Kavanaugh, let me assure that it could.  Think the left wouldn’t go after a woman with as much hatred and desperation as it has directed towards a man?  Ha, the battle against a pro-life woman would have been even MORE fierce.  And in the end, Judge Barrett, as fine a choice as she would be, surely would not have received the key vote of moderate Sen. Susan Collins.

I think the President deserves some credit for looking at all these factors at a time when the Senate is divided almost right down the middle.  (It might help to imagine the kind of justice Hillary would have nominated.)  If the Senate becomes more conservative after the midterms, it might be within the realm of possibility to win confirmation of someone like Judge Barrett.



From reader Mike S.:

“Your statement, ‘As for Kavanaugh’s fitness for the job, that’s the Senate’s call, not the FBI’s,’ is, I believe, incorrect.  The Senate can only offer advice and agreement or disagreement with the choice made by the President.  It's not their responsibility nor within their authority to determine fitness of a nominee.

“When they give the results of their vote to the President, they can also include what they believe is justification for their decision, but I also believe that decision is only secondary to the President's authority to appoint.”

A:  So...the Senate confirmation vote is really more like a suggestion?  Actually, Mike, unless it’s a recess appointment that expires at the end of the next Senate session (this is always less than two years), Senate confirmation is required.  In order to continue serving past that time, and to receive pay, this person must go through Senate confirmation.  In other words, the President does not have the unilateral authority to just appoint whoever he wants for a life term.  It’s the process itself that has been changing (for the worse) in recent years –- in fact, the Judiciary Committee didn’t even start interviewing nominees until 1925 –- but  “consent of the Senate” has always meant exactly that.  As I often remind my readers, I’m not a lawyer, but this is certainly my understanding of the Constitution.

There’s some good historical background at Wikipedia:



From reader Steve Y.:

“There about 325 million people in the USA who can NOT corroborate Dr. Ford’s testimony.  I don’t believe the Democrats will believe Judge Kavanaugh’s denial until all of them have been interviewed.”

A:  Right --- under oath, at least twice.  And been given polygraphs.  And even THEN, the Democrats won’t believe him!

(more from Steve)  “There was an excellent column in today's Wall Street Journal by Libby Locke, a Virginia attorney, entitled ‘How it feels to be falsely accused.’  Perhaps you could arrange to include it in your blog.”

A:  Thanks for this; her column is very good, explaining why someone in Brett Kavanaugh’s position might react with the anger and raw pain he showed.  It also leaves us, in effect, with the question, ‘Where does one go to get one’s reputation back?’  I’ll include it right now…


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