07 Sep

What is precedent upon precedent?

I’ve been asking myself that question after spending time reviewing more than I can stand of the Democrats meaningless interrogation of Judge Brett Kavanaugh.   Democrats did not question him seeking honest answers.   They already made up their minds to vote as a bloc against him.   

Angry protestors may have caused disruptions, but what most disturbing about the hearings was the contemptible behavior by Democrats on the Senate Judiciary Committee.   Sen. Patrick Leahy was relentless in his cross-examination of Judge Kavanaugh regarding drafts of stolen e-mails from years ago that the judge said he knew nothing about.   Sen. Richard Blumenthal (D-CT) was overtly hostile in his questions.   Sen. Diane Feinstein (D-CA) grilled Judge Kavanaugh on abortion.   As for Cory Booker (D-NJ) I’m grateful he is in the Senate.  He is obnoxious and may help GOP Senators who are up for re-election.   They should make use of Booker’s rants about violating Senate rules and feature him in campaign ads to show how low the Democrats have sunk. 

That said, there is only one issue the Democrats care about and that is abortion and ensuring that Roe v. Wade remain intact.   On the positive side, Judge Kavanaugh is likeable and came across like a gentleman.   If he had to answer questions about Roe v. Wade in an ambiguous way, it is not surprising.   This is what happens when precedent becomes the rule at judicial hearings, with arrogant Democrats setting both the precedent AND the rule.

For anyone who has not seen Judge Robert Bork’s nomination hearing in 1987, it is available on YouTube.   Judge Bork was able to speak his mind without restraint on decisions like Griswold vs. Connecticut, because the GOP leadership was not weak like it is today.  

Since Judge Bork’s nomination failed, the Democrats have grown bolder and set the standard for these hearings.   Sen. Ted Kennedy led the brigade to derail Robert Bork’s confirmation to the High Court and he succeeded.

As far as Democrats are concerned, Roe v. Wade is enshrined into the Constitution and supersedes the Bill of Rights.   The Democrats would destroy the entire Bill of Rights if it meant keeping abortion legal.   

Republicans need the votes to get any nominee confirmed.    They know the Senate Democratic leadership have transformed into a bloc party:  They vote as a bloc and block nominees they don’t like.   That won’t change.   In the late 1990s the Republican Party adopted the “big tent” strategy and disregarded their core base of social conservatives.   This strategy has helped the GOP win elections but also caused them to lose leverage in their own tent.   Republicans must proceed with caution to secure the votes of RINO Senators Susan Collins (R-Maine) and Lisa Murkowski (R-Alaska).   The Republicans are on the defensive in these hearings because abortion is the one issue around which they don’t vote as a bloc, and it didn’t have to be that way. 

Had the Republicans not abandoned the pro-life platform and ditched their base, they would be able to unite around reversing Roe v. Wade and state that openly and clearly.   Most of the GOP leadership is ashamed of their faithful pro-life base and wished it did not exist.  

Here is analysis from Politico:

“With just 51 GOP senators, the duo’s votes and generally pro-abortion rights views will be central to Kavanaugh’s confirmation as Democratic senators continue to withhold their votes for President Donald Trump’s Supreme Court pick. And Democrats and their outside-group allies began a new offensive aimed at Collins and Murkowski on Thursday, after the release of a 2003 email in which Kavanaugh edits an op-ed draft in order to raise doubts over whether the Supreme Court would respect the precedent of abortion rights.”

The news came out yesterday that Sen. Murkowski is reconsidering voting for Judge Kavanaugh based solely upon his answers on abortion.  

When Diane Feinstein questioned Judge Kavanaugh on Roe v. Wade, here was Judge Kavanaugh’s response:

“Roe v. Wade is an important precedent in the Supreme Court.   It’s been reaffirmed many times.   It was reaffirmed in Planned Parenthood vs. Casey in 1992 when the Court specifically considered whether to reaffirm it or whether to overturn it.    In that case, in great detail, the three-justice opinion of Justice Kennedy, Justice Souter and Justice O’Connor went through all the factors; the stare decisis factors, analyzed those, and decided to reaffirm Roe.   That makes Casey precedent on precedent.   It’s been relied on.   Casey itself has been cited as authority in subsequent cases such as Glucksberg and other cases…so that precedent on precedent is quite important as you think about stare decisis in this context.”

“A similar analogy - United States vs. Dickerson case in 2000 where the Court considered whether to overturn Miranda vs. Arizona or to reaffirm it - and in that case Chief Justice Rehnquist specifically reaffirmed Miranda despite the fact that Chief Justice Rehnquist had been a critic of Miranda in his early days and had written some opinions quite critical of it.   So that Dickerson case is similarly precedent on precedent, which is important going forward as you think about the stare decisis calculation for a case like Miranda.   So that’s why both of those cases, Planned Parenthood vs. Casey and Dickerson are cases where I refer to them as precedent on precedent.”

Although the analogy may be legally sound, it seems curious to compare Miranda (a case that had to do with the rights against self-incrimination) to a case that resulted in the continuous killing of unborn children. 

 Judge Brett Kavanaugh’s response is troubling.   I understand issues that have not been brought to the High Court are “hypothetical” and that Judge Kavanaugh is not able to reveal anything that would impact his role on specific cases.  That would result in a possible recusal should a case come up.   What I don’t understand is why a judge is not entitled to clearly express his or her personal opinion.   Doesn’t every human being have opinions?

If a judge remains impartial, personal views would not cloud decisions that must be predicated upon the original intent of the Constitution.   Now that the High Court has become a legislative body, they do what they want.   And abortion supporters get what they want.

Roe v. Wade is a terrible ruling that has resulted in the loss of 60 million human lives.   Roe must be reversed.   Judge Kavanaugh does not provide me with assurance that as a Supreme Court Justice he will take a committed stand for the unborn.

Copyright Bonnie Chernin.  

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