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Friday, September 21, 2018

A SERIOUS CONSIDERATION OF THE KAVANAGH MATTER


Enough of court packing fantasies.  Let me try to think through the probable consequences of Brett Kavanagh’s confirmation.

Very quickly after that confirmation, a case would come before the High Court that would result either in the overturning of Roe v. Wade or in a restriction of its application so severe as to constitute de facto reversal.  [At this point I proceed without any real legal knowledge, so the reader should be wary of my conclusions.]   This would not make abortion illegal in the United States.  It would simply leave in place and once again in force existing state anti-abortion laws.  In many states, encompassing, I believe, a majority of the population, abortion would be legal.  There would be some pro-abortion states [Massachusetts?] in which anti-abortion laws that had never been reversed but had simply been overruled by Roe would suddenly once again become state law, and would have to be removed by state legislative action.  There would be anti-abortion states where laws designed to make abortion impossibly difficult to obtain would be replaced by outright prohibitions.  The issue of abortion would become the determinative factor in struggles for control of state legislatures.  There would be an attempt in Congress to pass a federal prohibition on abortion, and although it would be expected to be upheld by the Supreme Court, it would, I believe, fail to get the necessary votes.

Thus on the issue of abortion, America would become two nations under one flag.

But that would not be the end of it.  Middle class and upper middle class women in anti-abortion states desiring an abortion would have the option of traveling to abortion-legal states, where they could obtain an abortion safely, legally, and privately from a health clinic.  This would of course include the wives and daughters of publicly anti-abortion male politicians.  The overturning of Roe would affect most immediately the tens of millions of women whose economic circumstances made such private medical trips prohibitive or whose understanding of the medical realities and available options was limited by their education and the nature of their medical care and insurance.

This would be a cruel, hypocritical, and in my judgment unsustainable state of affairs.  But I think it is almost certainly the state of affairs we would see come to pass if Kavanagh were confirmed.

Will he be confirmed?  I don’t know.

10 comments:

Ed Barreras said...

“This would of course include the wives and daughters of publicly anti-abortion male politicians.”

You forgot to add “mistresses.” In fact, especially mistresses.

Also, I see that comments in the previous post were occupied with the scandal involving Amy Chua and Jed Rubenfeld, the husband and wife Yale Law professors who instructed prospective female law clerks that Judge Kavanagh liked “outgoing” clerks who “look like models.” Chua even allegedly told one young woman to send her pictures of the outfit she planned to wear at her interview with the judge.

Can these bozos be called on to testify? Are they considered good legal scholars?

Like most people, I know Chua only as the author of pornography for status-anxious yuppies. I’m talking about her absurd Mommy Tiger nonsense, which she claims is a form of East Asian parenting but which is really, in an American context, an injunction to turn your kids into ruthless social climbers. And I guess that if you’re a pretty young woman, that involves wearing a short skirt and winking at powerful men.

And the Dean of Yale Law is of course claiming to be shocked, shocked by the whole thing.

MS said...

The answer to this dilemma is for the Democrats to do everything legally possible to prevent Judge Kavanaugh from being confirmed and then delay as much as possible the confirmation of any successor candidate until after January and hope that the Democrats win the Senate in November. This, obviously, will not be easy. If Kavanaugh is not confirmed, I suspect that Trump will next nominate a woman with conservative credentials, most likely Judge Amy Barrett, a judge on the 7th Circuit Court of Appeals and a law professor at Notre Dame. She was on Trump’s original list of potential candidates. She is a devout Catholic and has opined that a judge with religious convictions has a moral obligation to apply those moral precepts in ruling on cases. See
https://www.indystar.com/story/news/2018/06/28/who-trump-supreme-court-nominee-amy-coney-barrett-abortion-catholic-feinstein-row-v-wade/742235002/

Regarding Judge Kavanaugh and Prof. Ford’s accusation, it seems to me that Mark Judge’s expressed unwillingness to testify corroborates Prof. Ford’s version of the incident. Prof. Ford has indicated that Judge was present during the sexual assault. Mark Judge claims, even now, to be a friend of Kavanaugh. However, he has written Sen. Grassley indicating that he has no recollection of the event in question, and therefore his testimony would not be relevant, but believes that what Prof. Ford has accused Kavanaugh of would be totally out of character for him. Judge either was not present at the party in question, or he was present and does not remember, either because he has forgotten or he was himself too intoxicated to remember, or he was present and does remember what happened, and it confirms what Prof. Ford has alleged. Sen. Grassley has acceded to Judge’s request not to testify. However, if he is a friend of Kavanaugh’s, as he claims, he would want to do everything he can to help get him confirmed, including testifying as a character witness. Character witnesses are often called to testify to the good or bad character of the defendant; in fact, the Committee has already heard from several character witnesses in favor of Kavanaugh’s confirmation. Even if Judge was present but was too intoxicated to remember what happened, he would still want to testify as a character witness. This, to me, leaves the only rational explanation. He was present, remembers what happened, and would be torn between telling the truth and confirming Prof. Ford’s version of the incident, or committing perjury. He is reluctant to commit perjury, even to help his friend. Unlike Kavanaguh, who, I believe has already committed perjury regarding the meaning of the email he sent stating that Roe v. Wade is unsettled law, Judge does not have a Supreme Court seat to gain by committing perjury.

Regarding Prof. Chua and her husband, their testimony regarding what they understood to be Judge Kavanaugh’s preferences regarding the appearance of female law clerks is not relevant to the issue of whether Kavanaugh did nor did not attempt to rape Prof. Ford. Their beliefs in this regard indicates that Kavanaugh, and they for trying to help their students capitalize on his preference, is a shallow individual, but it does not make Prof. Ford’s accusation more or less likely. (Regarding Prof. Chua, by the way, I was so incensed by what I read about her grooming her female law clerks’ to please Judge Kavanaugh that I sent her an email last night castigating her along the lines of the comment I submitted to this blog. I received an automatic email response that Prof. Chua is on sick leave until December and will not be reading her emails. She and her husband are currently under investigation by the Yale Law School, she for the allegation about her advice to potential law clerks, and he for allegations of sexual harassment.)

MS said...

The following link is to an interview on Salon.com with Dr. Bandy Lee, professor of psychiatry at Yale Medical School. Dr. Lee was the editor of the book “The Dangerous Case of Donald Trump,” which contained the medical diagnoses of several psychiatrists. The interview is quite scary. Among other things, Dr. Lee reveals that she has been contacted by individuals in the White House regarding how to deal with President Trump and that Trump is showing signs of serious, and dangerous, emotional deterioration.

https://www.salon.com/2018/09/21/psychiatrist-bandy-lee-trump-is-getting-worse-i-suspect-he-is-unable-

MS said...

My apologies. Apparently the link that I posted for Dr. Lee’s interview was not the complete address. Here is the complete link:

https://www.salon.com/2018/09/21/psychiatrist-bandy-lee-trump-is-getting-worse-i-suspect-he-is-unable-to-tolerate-reality/

Anonymous said...

Even before the Ford allegations and the perjury claims, Kavanaugh has clearly shown that he's one of the least qualified to be nominated to the SCOTUS. Given his stated positions on several settled laws of the land, he is clearly unqualified to any bench much less the highest one. His grotesque reading of existing laws and their application in the cases he adjudated thus far, he's certainly an outlier and does not fit anywhere in the justice system. Like Scalia before him, he's just a political hack.

Carl said...

You've misspelled the nominee's name in three separate posts now, Wolfe.

Robert Paul Wolff said...

Whoops. Sorry. By the way, nice ironic post.

Matt said...

Middle class and upper middle class women in anti-abortion states desiring an abortion would have the option of traveling to abortion-legal states, where they could obtain an abortion safely, legally, and privately from a health clinic.

There is at least some worry that things could be worse than this, with something like "fugitive fetus" laws being passed, making it illegal to cross state lines to seek an abortion that would be legal in one's "home" state, or, alternatively, raising the possibility of criminal charges when returning "home". Laws like this have existed in other countries. (It was illegal for women in Ireland to travel to the UK to get an abortion under any circumstances for a long time, though of course some did. It had to be done before anyone knew about the pregnancy, or the possibility for criminal charges were real, and people were stopped from traveling if this was suspected.)

I don't know if these laws would be easier to pass on a national level than a flat federal anti abortion law would be, but I can see many very conservative states trying, and much needless pain and suffering resulting in the interim, even if the laws are eventually found unconstitutional. (There would be good grounds for that, though laws making it illegal to cross state lines for "criminal" activity are common. I'm not at all convinced that at least three justices - Alito, Gorsuch, and, if it happens, Kavanagh - would find them unconstitutional. I think it's harder to know about Roberts or Thomas, but maybe.) In any case, I don't think these should be ruled out. Of course, this sort of thing was predictable if Trump won, making it all the more sad that he did, and that this wasn't taken more seriously by some.

MS said...

Matt,

Actually what you propose would clearly be unconstitutional under the Full Faith and Credit Clause, Article IV, Sec. 1, which states: “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.” What this means, in practice, is if an individual goes to another state to engage in an activity that would be illegal in the individual’s home state, upon return to the home state, the individual cannot be legally penalized. This clause was relied on, for example, before no fault divorce laws became generally enacted throughout the United States. Individuals who cold not obtain a divorce in their home state would travel to Nevada, which had lenient divorce laws, establish residency, obtain a divorce and then return to their home state. The home state was required to recognize the divorce under the Full Faith and Credit Clause.

As an aside, when the issue of gay marriage was reviewed in the Supreme Court, in addition to the primary question regarding whether it was unconstitutional for a state to prohibit gay marriage, a secondary issue on appeal was whether, if the Court rejected the unconstitutionality of such anti-gay marriage laws, whether a state that had such legislation was required to recognize the gay marriage of a couple that traveled to, for example, New York, which recognized gay marriage, were married there and then returned to their home state, would the home state have to recognize the legitimacy of that marriage. I believe it would, under the Full Faith and Credit Clause. The Court never had to address this issue, since Justice Kennedy’s majority opinion ruled that laws prohibiting gay marriage were unconstitutional. If the Court had rejected that argument, I am fairly confident that the Court would have ruled in favor of the secondary issue in favor of those obtaining gay marriage licenses in states that recognized them under this Clause. In that event, individuals wanting to participate in a gay marriage would just have gone to those states that recognized them, just as people wanting to get divorced went to Nevada.. While this would not have been as comprehensive a solution as that which Justice Kennedy recognized, it would have undermined the opposition of those states that refused to allow them.

I doubt that even Justices Scalia, Alito. Thomas, and Roberts (the dissenters in Obergefell) would have refused to recognize the application of the Full Faith and Credit Clause to the secondary issue. I believe that Alito, Thomas, Roberts, Gorsuch and Kavanaugh, should he be confirmed, would likewise be hard-pressed to ignore the force of this Clause with respect to states that do not prohibit abortions.

By the way, on their face, the Fugitive Slave Laws would have violated the Full Faith and Credit Clause, but for the fact that Article IV, Sec. 2, originally had a clause essentially constitutionalizing the Fugitve Slave Laws. That clause was effectively repealed by passage of 13th Amendment.

Anonymous said...

With more accusations coming out during this busy weekend against the nominee, it's doubtful if this nomination will ever pass. The dam has burst. They may withdraw the nomination given the political bloodbath this has already caused.