What’s Good for RBG is Bad for Brett Kavanaugh, or So We’re Told

A typical headline in the liberal media and by progressive activists (excuse the redundancy) this week was Brett Kavanaugh’s ‘Obergefell’ Comments On Gay Marriage Will Give You Pause. As Bustle.com put it:

Brett Kavanaugh’s comments on Obergefell and gay marriage rights revealed little about his personal opinions on the matter. … Despite [Sen. Kamala] Harris repeatedly asking for Kavanaugh’s personal opinion on the case, Kavanaugh never directly gave it.

This is only surprisingly to those who are unfamiliar with the so-called Ginsberg Standard, named after liberal icon and current Supreme Court Justice Ruth Bader Ginsberg, who during her own confirmation hearing refused to indicate how she would rule on controversial matters that could come before the court. While this hesitancy certainly wasn’t new, Ginsburg clearly enunciated the principle that judicial nominees must avoid offering “hints,” “forecasts” or “previews” of how they might rule since decisions should be made based on the evidence presented and application of the law, not preexisting personal beliefs.

While RBG clearly didn’t want to seem biased by revealing she would oppose any limitation on abortion on demand up until at least the baby’s delivery, regardless of its previous viability outside the womb at time of termination, the principle in itself was and is sound.

Liberal media and activists are trying to argue that what was good and right for RBG is evil and nefarious for BK, but it’s just partisan blather.

As we noted earlier, Kavanaugh was a safe, solid choice and progressives were poised to denounce anyone Trump nominated as an extremist ideologue (and they know all about being extremist ideologues). Moreover, as we posted when Justice Anthony Kennedy announced his retirement:

20 Comments for “What’s Good for RBG is Bad for Brett Kavanaugh, or So We’re Told”

  1. posted by Tom Scharbach on

    Four thoughts:

    (1) If you compare the Ginsburg hearing and the Kavanaugh hearing, you’ll quickly discover that Justice Ginsburg directly answered a lot more questions than did Judge Kavanaugh.

    (2) While the “Ginsburg Standard” is appropriate (judicial nominees should not answer questions indicating how he/she would rule on a case or controversy likely to come before the court during the candidate’s tenure on that court), my view is that Judge Kavanaugh deployed the “Ginsburg Standard” much more that he needed to. Certainly he deployed it much more frequently than did Justice Ginsburg.

    (3) Senator Harris’ question was direct and simple: “Do you believe that Obergefell was correctly decided?” The question falls under the “Ginsburg Standard” if and only if Judge Kavanaugh believes that a case seeking to overturn Obergefell is likely to come before the Court during his tenure as a justice.

    (4) Walter Olson, apparently, does not believe that a case seeking to overturn Obergefell is likely to come before the Court during his tenure as a justice. Odd that Judge Kavanaugh seems to think otherwise, isn’t it. Maybe Judge Kavanaugh is overly cautious, but maybe Walter Olson is a pollyanna.

    Reply
  2. posted by MR Bill on

    A Responsible Opposing Viewpoint:”Here, then, is a condensed list of what Kavanaugh considers to be political questions: whether it is possible to disagree with President Trump; whether Ruth Bader Ginsburg is an “incompetent judge” who has “embarrassed us all”; whether attacking a judge for his Mexican heritage is acceptable; whether the president’s character matters; whether anti-Nazi protesters share moral culpability with Nazis themselves; whether daily presidential attacks on a special counsel are acceptable; whether the president can order torture worse than waterboarding; and whether he can order the prosecution of his political enemies and command that prosecutions of his political allies be dropped.

    The principle that the Department of Justice does not exist to imprison the president’s personal and political enemies should not be controversial.
    That last point is not some absurd hypothetical. Trump has repeatedly requested that his Department of Justice go after his enemies and drop the “witch hunt” investigations centering on the president and his friends. This week, it emerged that one of Trump’s political targets, former Deputy FBI Director Andrew McCabe, is under a grand jury investigation. It is impossible to ignore the fact that the president has repeatedly called for that investigation. Trump this week also attacked his own attorney general, who he is expected to fire, saying that Sessions failed to protect two Republican congressmen from corruption charges. “Two long running, Obama era, investigations of two very popular Republican Congressmen were brought to a well publicized charge, just ahead of the Mid-Terms, by the Jeff Sessions Justice Department,” the president wrote. “Two easy wins now in doubt because there is not enough time. Good job Jeff…… ”

    On Tuesday, Republican Sen. Jeff Flake questioned Kavanaugh about whether this tweet was appropriate. “Should a president be able to use his authority to pressure executive or independent agencies to carrying out directives for purely political purposes?” Flake asked.

    “I don’t think we want judges commenting on the latest political controversy,” Kavanaugh said.

    The principle that the Department of Justice does not exist to imprison the president’s personal and political enemies should not be a “controversial” question that must be hashed out in the “political arena.” In the very recent past it would not have been described as such by any nominee, Republican or Democratic. But for Trump’s Supreme Court justices, the rule of law will be debatable. ” https://slate.com/news-and-politics/2018/09/kavanaugh-confirmation-hearing-donald-trump.html

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    • posted by Jorge on

      ”Here, then, is a condensed list of what Kavanaugh considers to be political questions: whether it is possible to disagree with President Trump; whether Ruth Bader Ginsburg is an “incompetent judge” who has “embarrassed us all”; whether attacking a judge for his Mexican heritage is acceptable; whether the president’s character matters; whether anti-Nazi protesters share moral culpability with Nazis themselves; whether daily presidential attacks on a special counsel are acceptable; whether the president can order torture worse than waterboarding; and whether he can order the prosecution of his political enemies and command that prosecutions of his political allies be dropped.

      A longer list than I’m comfortable with, but the excess is short enough that I’m willing to defer, sight unseen, to the argument that the Constitution settles those questions in Article “Supreme Court Not Involved.” Which has been a not uncommonly cited part of the Constitution in past cases. I’ll need something more before I look up.

      The principle that the Department of Justice does not exist to imprison the president’s personal and political enemies should not be controversial.

      The principle that whether someone is motivated by Nazi ideology should impact how vigorously that person is prosecuted is not and should not be controversial.

      That author is pulling a bait-and-switch and I’m not allowing it. The question that was cited before was whether the President can order the DOJ to prosecute his political enemies, not imprison them. Whether they can be imprisoned is a function of the written law of the land and the views of unelected judges and juries. Between limited resources and the fact that all district attorneys are either elected or appointed, selective prosecution is as American as apple pie. It’s how a number of individuals became governors of New York, and one became mayor of New York.

      Oh, and neener-neener Witch Hunt. There is considerable reason to believe that staff in the FBI, at least, if not also the DOJ, have been carrying out an autonomous and rogue campaign to investigate and impair the president because he is their political enemy. It is not and should not be controversial for the President of the United States to inform his employees that their politics shall not dictate their official decisions.

      And I, for one, and sick and tired of every single liberal corruption and incompetence being laid at President Trump’s doorstep to mop up.

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      • posted by Matthew on

        “The principle that whether someone is motivated by Nazi ideology should impact how vigorously that person is prosecuted is not and should not be controversial.”

        Like all forms of totalitarianism, Nazism a form of Leftism. Hitler was no supply sider, but an out-and-out socialist. National Socialism was more than just a name.

        “The question that was cited before was whether the President can order the DOJ to prosecute his political enemies, not imprison them. Whether they can be imprisoned is a function of the written law of the land and the views of unelected judges and juries.”

        Bill Clinton used other government agencies to attack his critics, namely the IRS. He did what Nixon could only dream of.

        “And I, for one, and sick and tired of every single liberal corruption and incompetence being laid at President Trump’s doorstep to mop up.”

        Then vote only for Gay Republicans and there won’t be any corrupt hetero leftists to need to clean up after. They’ll all be in jail for the crimes against homosexuality they enabled. Seriously, gays who enable the hetero-left oppressor class are slitting all of our throats.

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      • posted by Kosh III on

        “And I, for one, and sick and tired of every single liberal corruption and incompetence being laid at President Trump’s doorstep to mop up.”

        Like how the Right blamed Obama for every ill from Adam and Eve on down to the present? His being lynched in effigy? etc

        Reply
  3. posted by Jorge on

    (3) Senator Harris’ question was direct and simple: “Do you believe that Obergefell was correctly decided?” The question falls under the “Ginsburg Standard” if and only if Judge Kavanaugh believes that a case seeking to overturn Obergefell is likely to come before the Court during his tenure as a justice.

    That is an excellent observation. I do not agree with your conclusion. I believe the Ginsburg Standard also applies if Judge Kavanaugh believes that Senator Harris believes such a case is likely to come to the Court. In that case answering the question would lend the appearance of such a bias, even if it were irrelevant, and create an influence on which lawsuits are and are not attempted. Sometimes it is perception that’s reality.

    I understand that in theory his professional opinions are fair game but when the Senate makes decisions based on the popularity of certain judicial decisions, it is not unreasonable for the counterbalance to adjust in strength. Ruth Bader Ginsberg was confirmed by, what, 98? If Brett Kavanaugh gets fewer votes than that, it won’t be because he answered fewer questions.

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  4. posted by Tom Scharbach on

    In that case answering the question would lend the appearance of such a bias, even if it were irrelevant, and create an influence on which lawsuits are and are not attempted. Sometimes it is perception that’s reality.

    Judge Kavanaugh answered Senator Harris’ question (“Do you believe that Obergefell was correctly decided?”), although indirectly, so the cat is out of the bag. He clearly does not think that Obergefell was correctly decided.

    In an exchange with Senator Cruz, Senator Cruz probed Judge Kavanaugh’s thinking about “the foundations of the unenumerated rights doctrine”, that is, rights, such as the right to purchase and use birth control (see Griswold), that are not explicitly named in the Constitution’s text, but which the Supreme Court has held over the years to be implicit in the text, under the “penumbra” of the 9th Amendment or otherwise, sometimes called “the right to be left alone”.

    Judge Kavanaugh responded that “all roads lead to the Glucksberg test as the test that the Supreme Court has settled on as the proper test” to determine the scope of these unenumerated rights.

    Glucksberg is a 1997 Supreme Court decision holding that the Constitution does not protect a right to physician-assisted suicide. The opinion was written by Chief Justice Rehnquist, which reasoned the question of which unenumerated rights are protected by the Constitution should be answered by asking which rights are “deeply rooted in this Nation’s history and tradition”. That’s the “Glucksberg test” that Judge Kavanaugh cited as controlling in his thinking about unenumerated rights.

    Judge Kavanaugh’s thinking eviscerates both the Lawrence and Obergefell opinions. In Lawrence, Justice Kennedy’s opinion did not explicitly mention Glucksberg, but applied the broader Casey test, much to the dismay of Justice Scalia, who bitterly attacked the majority opinion and cited Glucksberg repeatedly. In Obergefell, Justice Kennedy’s opinion expressly disavowed the “Gluckberg test” as “inconsistent with the approach this Court has used in discussing other fundamental rights, including marriage and intimacy”:

    Objecting that this does not reflect an appropriate framing of the issue, the respondents refer to Washington v. Glucksberg, 521 U. S. 702, 721 (1997), which called for a “careful description” of fundamental rights. They assert the petitioners do not seek to exercise the right to marry but rather a new and nonexistent “right to same-sex marriage.” Brief for Respondent in No. 14-556, p. 8. Glucksberg did insist that liberty under the Due Process Clause must be defined in a most circumscribed manner, with central reference to specific historical practices. Yet while that approach may have been appropriate for the asserted right there involved (physician-assisted suicide), it is inconsistent with the approach this Court has used in discussing other fundamental rights, including marriage and intimacy. Loving did not ask about a “right to interracial marriage”; Turner did not ask about a “right of inmates to marry”; and Zablocki did not ask about a “right of fathers with unpaid child support duties to marry.” Rather, each case inquired about the right to marry in its comprehensive sense, asking if there was a sufficient justification for excluding the relevant class from the right. See also Glucksberg, 521 U. S., at 752-773 (Souter, J., concurring in judgment); id., at 789-792 (BREYER, J., concurring in judgments).

    That principle applies here. If rights were defined by who exercised them in the past, then received practices could serve as their own continued justification and new groups could not invoke rights once denied. This Court has rejected that approach, both with respect to the right to marry and the rights of gays and lesbians. See Loving 388 U. S., at 12; Lawrence, 539 U. S., at 566-567.

    In turn, Justice Robert’s Obergefell dissent, joined by Justices Scalia and Thomas, took issue with the majority opinion and embraced Glucksberg as the proper test in a lengthy discussion of Glucksberg.

    So there it is.

    Judge Kavanaugh cannot both believe that Obergefell was “correctly decided” and believe that “all roads lead to the Glucksberg test as the test that the Supreme Court has settled on as the proper test”.

    If he believes what he said about Glucksberg, then he must, as did Chief Justice Roberts, Justice Scalia and Justice Thomas, believe that both Lawrence and Obergefell were not “correctly decided”.

    Reply
    • posted by Matthew on

      Then it’s time to make open homosexuality a mandatory job requirement.

      Reply
    • posted by Jorge on

      Judge Kavanaugh’s thinking eviscerates both the Lawrence and Obergefell opinions.

      Maybe, maybe not. With gay marriage there isn’t even agreement on what the rights at issue are. It becomes very difficult to define both what is a “fundamental” right and what is a “right steeped in this country’s tradition” under those circumstances. In Obergefell, as I believe you are aware, I take the position that the right in question was perfunctory in nature, while Lawrence implicated something of substance. It is unsurprising that there was a split between the majority and the dissent on Obergefell on which train of legal thinking is more relevant.

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    • posted by Tom Scharbach on

      In Obergefell, as I believe you are aware, I take the position that the right in question was perfunctory in nature, while Lawrence implicated something of substance.

      You can take whatever position you want, Jorge, but you can’t get around the fact that the majority opinion in Obergefell explicitly disavowed the “Glucksbergtest” as the applicable standard in both Lawrence and Obergefell, and Judge Kavanaugh holds up the “Glucksbergtest” as the proper standard to be applied in all cases where unenumerated rights are at issue.

      And, of course, you can’t get around the fact that both Obergefell and Lawrence would have been decided differently if the “Glucksbergtest” were the applied standard. As Justice Scalia pointed out in his Lawrence dissent, laws banning/punishing sodomy were what was “deeply rooted in this Nation’s history and tradition”, and as Chief Justice Roberts pointed out in his Obergefell dissent, “one man, one woman” was “deeply rooted in this Nation’s history and tradition”.

      Judge Kavanaugh’s thinking about the “Glucksbergtest” is a more or less standard conservative legal view, certainly so among those styling themselves as “originalists”, and affects several lines of Court reasoning since Griswold.

      Rejecting the “penumbra” theory of unenumerated rights, and embracing the “Glucksbergtest” is, in fact, central to the conservative legal attack on Roe v. Wade.

      As Judge Kavanaugh put it in a 2017 speech to the AEI, “even a first-year law student could tell you that the Glucksberg’s approach to unenumerated rights was not consistent with the approach of the abortion cases such as Roe vs. Wade in 1973, as well as the 1992 decision reaffirming Roe, known as Planned Parenthood vs. Casey.

      Lawrence and Obergefell are, in the context of conservative legal thinking, just collateral damage in the campaign to overturn/eviscerate Roe. But if the “Glucksbergtest” is established as “the proper standard”, as advocated by Judge Kavanaugh and the conservative Justices, then collateral damage they will be.

      You might want to read Chief Justice Robert’s dissent in Obergefell again, and think about it in the context of Walter Olson’s article cited by Stephen in this post. You cannot help but have noticed that Olson, a lawyer of some skill, makes no legal argument whatsoever that anything stands in the way of overturning Obergefell, because he cannot if the “Glucksbergtest” is to become recognized as the proper standard for measuring unenumerated rights.

      Olson’s arguments are all, as they must be, entirely pragmatic, political arguments.

      With Judge Kavanaugh’s elevation to the Court, five Justices (Chief Justice Roberts, Justices Alito, Gorsuch, Kananaugh and Thomas) will control the Court, and all have made it clear that the “Glucksbergtest” is the standard that will be applied to unenumerated rights going forward.

      That’s serious stuff. I leave you with Justice Kennedy’s thoughts in Obergefell, quoted in my earlier comment: “If rights were defined by who exercised them in the past, then received practices could serve as their own continued justification and new groups could not invoke rights once denied. This Court has rejected that approach, both with respect to the right to marry and the rights of gays and lesbians. See Loving 388 U. S., at 12; Lawrence, 539 U. S., at 566-567.

      The Court won’t be “rejecting that approach” in the future.

      Reply
  5. posted by JohnInCA on

    I like how we’re not even talking about the repeated perjury through multiple senate confirmations to multiple posts.

    I guess, according to Kavanaugh, perjury is only a problem when it’s covering up an affair, not when it’s covering one’s involvement in spying operations on your political opposition.

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    • posted by Matthew on

      The Left has been openly engaged in treason since at least as far back as the late 1960s and the Slaveocrat Party has been a noose around this country’s neck in more ways that one since its inception. Someone’s got to keep tabs on them.

      Reply
      • posted by JohnInCA on

        Out of curiosity, do you keep score on how many people you can annoy into yelling at you? Do you track different forums/sites/etc. separately or do you just roll-up your score into a summary?

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        • posted by Jorge on

          Vladimir Putin’s spies keep track of everything.

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        • posted by Tom Scharbach on

          Vladimir Putin’s spies keep track of everything.

          Cool. Then all JohninCA has to do is ask President Trump whether Matthew keeps score.

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          • posted by JohnInCA on

            Snark #1) but Twitter gives me a rash…

            Snark #2) nah, President Trump would be a horrible spy. You have to actually be able to keep your story straight and accurately report the truth to be a spy, two skills the President has not mastered.

  6. posted by Matthew on

    Heterosexuality is a threat to the long-term sustainability of the planet. Only gay marriage should be allowed.

    Reply
    • posted by Tom Scharbach on

      Heterosexuality is a threat to the long-term sustainability of the planet.

      Unless you can figure out a way to persuade heterosexuals to forego sex for a generation (and good luck with that), you aren’t going to solve the problem of heterosexuality.

      Reply
    • posted by Chang on

      Matthew????

      Reply

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