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Imaginary moral equivalency and the fight to confirm Judge Brett Kavanaugh

by | Aug 14, 2018

By Dave Andrusko

Judge Brett Kavanaugh

After I read a piece he wrote for the Atlantic way back in 2005, I did not kept track of what Benjamin Wittes has said over the years about abortion. In that opinion piece, Wittes wrote, “In the years since the decision [Roe] an enormous body of academic literature has tried to put the right to an abortion on firmer legal ground. But thousands of pages of scholarship notwithstanding, the right to abortion remains constitutionally shaky. … [Roe] is a lousy opinion that disenfranchised millions of conservatives on an issue about which they care deeply.”

No pro-lifer by any means, Wittes, a senior fellow at the Brookings Institute, was convinced that if the abortion decision ever were returned to the states (not that he was in favor of that), “abortion rights” supporters would do just fine because public opinion is on their side.

I mention this background because he has a new piece in the Atlantic talking about the forthcoming battle over Judge Brett Kavanaugh’s nomination to the Supreme Court. And the abortion issue will be a prominent part of what promises to be a heated debate.

Wittes contention is that once upon a time a kind of comity, if not harmony, existed when considering Supreme Court nominations (in particular). Now “partisanship” has won out.

“Raw political power” rules and if a particular party has enough votes in the Senate they win, and if they don’t, they won’t. (That’s, of course, assuming that if a political party has a narrow majority in the Senate, they will have no defections.)

Two points.

#1. While he is lamenting the situation, Wittes acknowledges what some other (but not many others) liberals concede about Judge Kavanaugh: He is “certainly well qualified” and “he is a principled and talented jurist.”

#2. Wittes argues that with regard to this question of the “Confirmation Wars” there is a “moral equivalence between the two sides”—the Democratic and the Republican parties. Really?

As if what he calls the “contagion” of “partisanship” didn’t begin with the Democratic assault on Judge Bork or escalate in the vicious campaign against Clarence Thomas? Or as if it is not Democrats who are floating the idea of adding additional justices to the Supreme Court—“court packing.”

These considerations are very much worth remembering because while it’s relatively quiet now, the sleaze machine is just getting warmed up. Count on the following.

Senate Democrats, aided by most of the media and the Abortion Industry, will “find” something, will latch onto it, and announce that this imaginary flaw is reason enough not to confirm this “certainly well qualified” and “principled and talented jurist.”

Categories: Supreme Court