Brett Kavanaugh: The End of Leftists' World
The president's announcement of Brett Kavanaugh as his SCOTUS pick means the faux national emergency over children in cages will be exchanged for the even more faux national emergency over "women's health care." The mobs shrieking last week that this crime of ripping children (metaphorically) from their mothers' arms must end now will become the mobs screaming this week that this wholesale practice of ripping babies (literally) from their mothers' wombs must go on, and go on forever.
According to Ilyse Hogue, president of NARAL Pro-Choice America, they scream because abortion on demand is "an issue of constitutional and human rights." Hogue made this lofty claim to an amenable Dana Perino on last week's Fox News Sunday. Hogue was there to complain that, because Donald Trump is "the first major-party nominee to become president to put a litmus test on a Supreme Court nominee," he has "changed the rules of the game." That rule change justifies her side's current demand that any acceptable SCOTUS nominee must first make "an affirmative declaration" to support Roe v. Wade.
Planned Parenthood, singing from the same hymnbook, also announced to the U.S. senators that they must adopt the "Personal Liberty Standard":
That is, the Senate must only confirm a justice who affirmatively declares that they [sic] believe the U.S. Constitution protects individual liberty and the right of all people to make personal decisions about their bodies and personal relationships – including the right to use contraception, the right to have an abortion, and the freedom to marry whom they choose.
So who needs a litmus test? Simply require nominees to swear an oath of allegiance to unbounded leftist talking points.
It's notable how, when Hogue throws down her ultimatum that Roe must remain forever beyond the reach of judicial review, she never mentions how the opinion deserves that deference because of its sound reasoning. Even pro-abortion legal scholars have always recognized that Roe doesn't contain any. Rather than try to defend Roe, Hogue resorts to the preferred argument that "most American people" believe that legalized abortion is "core to our country's principles." It's doubtful that any of the countless polls on the topic ever posed the question in exactly those terms. Notwithstanding the polls, isn't it fair to question, after 45 years of being hectored that "the law of the land" says a highly specific class of arbitrary homicide is an inalienable right, whether majority opinion on this topic even qualifies to be consulted? Consider, as Mona Charen observes, that poll results reveal how "the same Americans will say that they believe abortion to be murder, and that it should be a personal choice made by a woman and her doctor."
Putting that deplorable thought to one side, how abortion ranks with the popular will is completely irrelevant to the work of the Supreme Court. The duty of the justices is to interpret and apply the law in light of the Constitution, with no recourse to popular sentiment. The Framers designed the Court to be a nonpolitical branch, appointed and not elected, better enabled to guarantee that majority rule will not be allowed to trample minority rights. In effect, the Framers were telling us, "If you want to count heads, hold an election."
Yet, despite constant refrains of commanding majority support, the last thing the pro-abortion movement wants is to put its majorities to a real test.
For instance, when Dana Parino asked Hogue if, in view of changing public opinion on Roe, the issue could be returned to the states, Hogue was adamant that it could not. "I'm from Texas," she said, "so I'm very familiar with what happens when the state decides." Apparently, what happens when the state decides is not at all what leftists are thinking of while they're chanting, "This is what democracy looks like!" Hogue was well aware that there is a sizeable number of Americans who don't consider abortion "core to our nation's principles"; this fact formed part of her charge against Trump, as his alleged litmus test signaled "many Americans" with a pro-life "mindset" to support him in the election.
Hogue's whole point is that all such epic failures of democracy make it necessary to have "federal protection," in the form of a "federal guideline that affirms the fact that Roe should be legal." But this forgets, or does not know, that we already have a federal guideline and federal protections: the Constitution. Besides, hasn't the Supreme Court already held that Roe remains the law?
Not good enough. The left has understood all along that Roe, and the later cases that rely on its principal holding, are eminently overturnable. Laurence Tribe, liberal and constitutional law scholar, wrote, "One of the most curious things about Roe is that, behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found."
Attorney Edward Lazarus, one-time law clerk to Roe's author, Justice Harry Blackmun, wrote about the opinion that "[a]s a matter of constitutional interpretation, even most liberal jurisprudes – if you administer truth serum – will tell you it is basically indefensible. Yet Democrats have made it a litmus test."
To be fair, Democrats had no choice but to make it a litmus test. In view of Roe's indefensibility, they could hardly risk confirming agnostic nominees who might later, upon re-examining Roe, figure out that this whole time, it's been nothing but a "super-protected right [that] is not inferable from the language of the Constitution."
Nor was it Donald Trump, but the Democrats, who invented the litmus test expressly to kill nominations of judges who didn't share their views on abortion. In 1993, President Bill Clinton openly stated his intention to appoint judges who believe in the "right to privacy, including the right to choose." Bill Moyers asked him, but isn't that using a litmus test? Clinton agreed that it was, but he felt he had to appoint pro-abortion judges who "can provide some balance." In 2016, Hillary Clinton was asked if she would use a pro-abortion litmus test on SCOTUS candidates, and she answered, "I do have a litmus test, I have a bunch of litmus tests. ... [W]e've got to make sure to preserve Roe v. Wade."
Poor Hillary never got to use her litmus tests. Instead, the sudden reality of a Court majority balanced the other way is now bearing down on the left like a freight train. Leftist ideas are down to demanding a loyalty oath to Roe or packing the Court with abortion ideologues. Both schemes are hopelessly unrealistic. The collapse of their strategists is evident in commentary like this Huffington Post call to arms: "Eleven Justices' is the next 'Abolish ICE.'"
That's sure to catch on.
When your signal victories – e.g., unrestricted abortion, affirmative action, redefining marriage – were all achieved by judicial fiat rather than by popular will – and as often in spite of popular will – you know there's more on the line than a reversal of Roe v. Wade. We're this moment witnessing the left's abject terror that the nation's Article III courts will one day, very soon, cease to be the reliable law-making factory for the left. As NPR's Nina Totenberg exclaimed, "Kennedy's retirement is the end of the world as we know it."