‘Get Real:’ Leading Democrats Know Kavanaugh Impeachment Is Pipe Dream

If further evidence of a schism between the woke base of the Democratic Party and its leadership class, the move to impeach Justice Brett Kavanaugh should provide it. A fresh allegation of sexual impropriety over the weekend stoked the fires of impeachment among activists but realists quickly dismiss the movement.

The new allegation is from a third party who said he saw Kavanaugh’s friends push his penis into a female Yale student’s hands during a drunken party. Max Stier, the man who claimed to witness the incident, has not come forward publicly and the New York Times story on the incident was corrected to point out that the woman at the center of the allegation does not remember the incident and declined to be interviewed. There also seem to be no other corroborating witnesses or evidence.

In summary, the allegation is like the other allegations against Kavanaugh in that none of them can be supported by objective evidence. If this information had been brought forward in the confirmation hearings, it would not have changed anything and it is not sufficient to justify impeachment. None of this matters to the chattering class, but the people who would have to carry out the impeachment know better.

“Get real,” said Senate Minority Whip Dick Durbin (D-Ill.) on Monday.

“We’ve got to get beyond this ‘impeachment is the answer to every problem.’ It’s not realistic,” Durbin told Politico. “If that’s how we are identified in Congress, as the impeachment Congress, we run the risk that people will feel we’re ignoring the issues that mean a lot to them as families.”

Squad member Rep. Ayanna Pressley (D-Mass.) has said that she will introduce an impeachment resolution that would allow House Judiciary Committee to investigate whether Kavanaugh should be impeached, arguing, “Kavanaugh’s confirmation process set a dangerous precedent. We must demand justice for survivors and hold Kavanaugh accountable for his actions.”

Let me help her answer that question. He shouldn’t.

Per the Constitution, “The President, Vice President and all Civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” If we look back to the original intent of the phrase “high crimes and misdemeanors,” it is much more broad than the criminal definition often assumed today. As the Constitutional Rights Foundation points out:

The convention adopted “high crimes and misdemeanors” with little discussion. Most of the framers knew the phrase well. Since 1386, the English parliament had used “high crimes and misdemeanors” as one of the grounds to impeach officials of the crown. Officials accused of “high crimes and misdemeanors” were accused of offenses as varied as misappropriating government funds, appointing unfit subordinates, not prosecuting cases, not spending money allocated by Parliament, promoting themselves ahead of more deserving candidates, threatening a grand jury, disobeying an order from Parliament, arresting a man to keep him from running for Parliament, losing a ship by neglecting to moor it, helping “suppress petitions to the King to call a Parliament,” granting warrants without cause, and bribery. Some of these charges were crimes. Others were not. The one common denominator in all these accusations was that the official had somehow abused the power of his office and was unfit to serve.

There is no evidence that any of these apply to Brett Kavanaugh, especially since he took his seat on the Supreme Court last year. This is key because the House Judiciary Committee determined in 1873 that impeachment “should only be applied to high crimes and misdemeanors committed while in office and which alone affect the officer in discharge of his duties.”

At this point, there is far more cause to impeach Donald Trump than Brett Kavanaugh. The Mueller report’s revelations of Trump’s attempts to interfere with an ongoing investigation and the president’s use of national emergencies to circumvent the will of the people expressed through Congress would arguably fall under the abuse of office category of “high crimes and misdemeanors.”

The ultimate problem with impeaching both Kavanaugh and Trump is the Republican Congress. As Sen. Patrick Leahy (D-Vt.) pointed out, “Mitch McConnell would block any impeachment. So that’s a moot point.”

Impeachment of either man would be pointless because Democrats are not even close to the required two-thirds of members present in the Senate. An impeachment vote in the House would only serve to fortify the Republican base for the upcoming election.

An article in Vox that judges can be removed without impeachment faces similar problems. The argument, based on a paper that predates the Kavanaugh controversy by law professors Saikrishna Prakash and Steven D. Smith, is that judges who fail to exhibit “good behavior” can be removed by the “judicial process.”  

Again, the problem is that Kavanaugh has not committed “misbehavior” while in office. Further, the Department of Justice and Supreme Court are controlled by Republicans and constitutionalists respectively. Neither is likely to allow a court proceeding that would remove Kavanaugh.

There is a good argument that the bar for impeachment is too high, especially given our stalemated Congress and current tribal partisan nature, but the procedure is laid out by the Constitution and will not be changed any time soon, again thanks to our stalemated Congress. The rank-and-file members of Congress and presidential candidates who are pushing impeachment of the two men are either strategically challenged or are doing so to gain publicity for themselves at the expense of their party.

Originally published on The Resurgent

Brett Kavanaugh Just Helped Planned Parenthood Keep Its Funding

In a surprising move, newly minted Justice Brett Kavanaugh and Chief Justice John Roberts joined with the Court’s liberal justices to prevent the high court from deciding whether states could defund Planned Parenthood. The move will let stand lower court rulings that struck down two state laws in Louisiana and Kansas that would have barred the abortion provider from receiving Medicare funds.

Louisiana and Kansas had sought certiorari to allow the Supreme Court to hear their appeals in Gee v. Planned Parenthood of Gulf Coast and Andersen v. Planned Parenthood of Kansas and Mid-Missouri. Four judges must agree to accept a case and the votes of Kavanaugh and Roberts to deny certiorari killed any chance that the Court would hear the Planned Parenthood cases, let alone allow states to defund the group.

Several other states have attempted to ban funding for Planned Parenthood at the state level after Republicans in Washington were unable to move a funding ban through Congress. For now, it appears that any further attempts to cut off the group’s federal money will be defeated.

Chief Justice John Roberts typically votes in the conservative bloc but has been key to some high-profile disappointments for constitutionalists. Roberts was the key vote in saving Obamacare with his opinion that the individual mandate was really a tax and therefore constitutional.

Kavanaugh’s vote may surprise some, but several observers predicted that if President Trump wanted to overturn Roe v. Wade, Kavanaugh was the wrong judge to pick. Similar to Roberts, Kavanaugh ruled on an Obamacare case in which he did not dispute the constitutionality of the health insurance law. Prior to Kavanaugh’s confirmation, Sen. Susan Collins (R-Maine) argued that Kavanaugh was a judge who would uphold precedent. That statement was interpreted as an indication that Kavanaugh would not strike down Roe and possibly Obamacare as well.

Justice Clarence Thomas, who was appointed to the Court by the recently departed George H.W. Bush, dissented, writing that the other judges were afraid to tackle the hot-button issue. “Some tenuous connection to a politically fraught issue does not justify abdicating our judicial duty,” Thomas said. “If anything, neutrally applying the law is all the more important when political issues are in the background.”

The decision not to grant certiorari is a hard hit for pro-life groups. “If Kavanaugh was going to deal a major blow to health care rights during his first session on the court, this would have been the case to do it,” Tim Jost, an emeritus professor at Washington and Lee University School of Law, said in Politico.

During the 2016 election, Donald Trump’s pro-life platform and promise to appoint judges who would overturn Roe was a major reason that many Republicans held their noses and voted for him over Hillary. Given Mr. Trump’s long pro-choice history and the ready availability of more firmly pro-life, constitutionalist judges such as Amy Coney Barrett, many of those voters must wonder today if Justice Kavanaugh has gone rogue or if he is doing exactly what President Trump and other pro-choice Republicans wanted him to. 

Originally published on The Resurgent

Alaska GOP May Punish Murkowski

Alaska Senator Lisa Murkowski has long been a rogue Republican. On almost every controversial vote, Murkowski, along with Susan Collins of Maine, is considered one of the Republican senators that may not be reliable. Now, Murkowski’s “no” vote on Brett Kavanaugh’s confirmation may have been a bridge too far.

The Associated Press reports that the Alaska Republican Party is considering punitive measures in retribution for her vote. The punishments being considered range from a statement of reprimand to withdrawing support for Murkowski when she runs for reelection.

Sen. Murkowski has long been a thorn in the side of the party’s conservatives. She is pro-choice and was one of the first Republican senators to support same-sex marriage. In recent years, Murkowski voted with Democrats to return to the Obama-era net neutrality rules and was one of the holdouts who scuttled the Republican plan to reform Obamacare.

Murkowski has been in political trouble before due to her moderate leanings. In 2010, she lost the Republican primary to Tea Party favorite, Joe Miller. Murkowski mounted a write-in campaign that eked out a four-point victory over Miller in the general election.

Few conservatives would shed many tears if the Republicans abandoned Murkowski, but, since being elected to Congress in 2004, she has proven herself to be very resilient. In her last campaign, she finished 15 points of Joe Miller, who had by then become a Libertarian and was her nearest opponent in a crowded field.

For Murkowski, time is on her side. Her current term started in 2017 so she will not have to seek reelection until 2022. In the current political climate, many things can change in four years. It’s likely that tempers will have cooled and Murkowski will have cast votes since then that her constituents will celebrate. Republicans will probably decide that a rogue Republican who can win is better than a someone ideologically pure who cannot.   

Originally published on The Resurgent

Liberal Stephen Colbert Writer Celebrates Politics Of Personal Destruction

We all know that politics is toxic these days but from time to time, an unguarded comment lets slip just how vicious the political arena has become. That was the case over the weekend when a writer for comedian Stephen Colbert’s show applauded the fact that Brett Kavanaugh’s life had been “ruined.”

In a Saturday afternoon tweet, Ariel Dumas opined, “Whatever happens, I’m just glad we ruined Brett Kavanaugh’s life.”

Within hours, Dumas deleted the tweet but the thought process that was behind it remains all too common on both sides of the political spectrum. Political disagreement has morphed into a scorched earth mentality in which the attitude is if you disagree with us, we will destroy you. Even if we lose, you lose because your reputation, your business, your family will be in ruins.

Ironically, Stephen Colbert has decried the current state of politics in a monologue that might have been written by Dumas herself. On November 9, 2016, Colbert said, “So how did our politics get so poisonous? I think it's because we overdosed, especially this year. We drank too much of the poison. You take a little bit of it so you can hate the other side. And it tastes kinda good. And you like how it feels. And there's a gentle high in the condemnation.”

I think that Colbert was right. The poisonous political discourse is like an addictive drug. It isn’t enough to disagree with the opposite on policy. We ascribe bad motives to them and claim they are out to destroy the country. This makes us feel better about ourselves as well as getting results in the form of turning out the base and generating views and clicks. But, like crack and meth, we have to up our dosage of extremism and anger to get the same high and the same result. The crisis never ends. These days the fate of the Republic hinges on every election. For every overreaction, there is an unequal but opposite overreaction.

A separate but related problem is that if we assume that people on the other side of the political spectrum are evil people who want to ruin the country and deserve to be destroyed, it makes it pretty tough to work together to accomplish anything. Is it any wonder that Congress is stalemated and attempts to build the bipartisan compromises that we have celebrated throughout our history are denounced as traitorous? The current political climate in which almost any significant legislation is passed by bare majorities on near-partisan votes long predates the Trump Administration.

Likewise, the phrase, “the politics of personal destruction,” was made popular during the Clinton Administration, but the strategy of razing an opponent’s reputation can be traced, at least in the modern era, to the Supreme Court confirmation hearings of Robert Bork. Regardless of which side began the strategy, both sides have used it to their own advantage and both are complicit in the degradation of political discourse.

To her credit, Dumas not only deleted the tweet but apologized as well. In another tweet the following day, she wrote, “The last couple of weeks have been hard for the country and for me personally. The complexity of frustration, anger and sadness can’t be accurately conveyed on twitter, and I regret my tone-deaf attempt at sarcasm in the wake of it.”

I applaud Ms. Dumas’s apology and hope that it makes her and others rethink how they view the other side. Partisans who make personal attacks and pine for the personal destruction of their political adversaries should take a step back and remind themselves that the people on the other side are Americans too and that the vast majority of us want what is best for our country. We aren’t going to get the best by making politics so toxic that we can’t even talk to each other.

Chill out, America. Justice Brett Kavanaugh isn’t going to turn the clock back to 1942 as one liberal tweeter alleged. We also survived net neutrality and quitting the Paris Accords. Contrary to predictions from the right, the Affordable Care Act also did not kill the Republic. Neither did Dodd-Frank, NAFTA, the NDAA or Jade Helm.

America is resilient. We have faced worse as a country and survived. Both sides need to tone down their rhetoric, but this too shall pass. 

 Originally published on The Resurgent

How Will The Kavanaugh Confirmation Affect The Midterms?

Brett Kavanaugh’s confirmation fight is now a matter for the history books. Justice Kavanaugh has already been sworn in and will join the other justices when the Supreme Court reopens on Tuesday. The next question to consider is how the bruising battle to confirm Kavanaugh will impact the midterm elections, now less than a month away.

The past week has brought positive polling news for Republicans that was almost certainly related to the Kavanaugh hearings. First, polling showed that Republican enthusiasm had risen sharply in recent months, finally catching up to that of the Democrats. Following on that news, the Cook Political Report moved three Senate races to more favor the Republican candidates. In one case, the race for Democratic Sen. Jon Testor’s seat in Montana, shifting polls give the GOP a chance to flip a Democrat seat. Jon Testor’s vote against Kavanaugh in deep red Montana may sway voters against him in the tossup election.

While Kavanaugh’s confirmation is good news for Republicans and their base, the bad news for Republicans is that they failed to make the case to voters that Kavanaugh should have been confirmed. FiveThirtyEight’s analysis of Kavanaugh’s approval rating showed that the judge was moderately popular when he was first nominated, but that his approval was already falling when Christine Blasey Ford made her accusation against him on Sept. 16. After the accusation, Kavanaugh’s approval fell below 50 percent and never recovered.

Kavanaugh’s approval rating fell with all demographics except Republicans, where he became more popular after the Ford accusation. Unsurprisingly, the largest drop was among Democrats, but Kavanaugh also had a net disapproval among independents. Ominously for Republicans, Kavanaugh’s approval fell among both men and women. The judge’s approval was still positive by about five points among men but was negative by 15 points among women.

It is the reaction of women that may tell the tale of the 2018 midterms. Even before the Kavanaugh accusations, the GOP was in big trouble with female voters. Many analysts, such as Dave Wasserman of the Cook Political Report already predicted that 2018 would be the “year of the angry female college graduate.” Brett Kavanaugh’s confirmation will do little to cool the tempers of angry women.

It must be remembered that the 2018 midterms are not one election, but rather a series of local and state elections. How the Kavanaugh confirmation affects the election will depend on the local electorate. In the case of red state Senate Democrats, opposition to Kavanaugh could hurt the incumbents and possibly tip some races to the Republicans.

Beyond red state Democrats, it becomes a question of which group is more motivated by Kavanaugh’s confirmation. Republicans voters will be inspired to reward their party for standing firm. For Democrat voters, the goal will be to prevent another conservative justice from being appointed in the event that Ruth Bader Ginsburg or Stephen Breyer leave the Court.

Thus far, President Trump’s appointments have had minimal effect on the balance of the Court. Gorsuch and Kavanaugh replaced the constitutionalist Scalia and the nominally conservative Anthony Kennedy. However, if President Trump appoints a replacement for Ginsburg or Breyer, two liberals who are also the oldest justices, the Court could veer sharply to the right. Preventing such a conservative movement would be a prime motivation for the left. To do so, they would need to win the Senate in 2018 and the presidency in 2020.

Brett Kavanaugh has already given Republicans a shot in the arm by boosting enthusiasm for the midterms, but he has also given Democrats a powerful reason to get out the vote. The fact that Republicans pushed Kavanaugh through against popular opinion may cost the GOP the votes of some independents and moderates. If the election is about the turning out the base then Republicans may gain an advantage from Kavanaugh. However, if voter anger spreads and independents are motivated to turn out in large numbers, the advantage will likely go to the Democrats.

Originally published on The Resurgent

After The Confirmation, Lindsey Graham Carries The Fight To Chuck Schumer

One of the most unexpected aspects of the Kavanaugh confirmation fight was Sen. Lindsey Graham’s emergence as a champion of the conservative right. Graham, a Republican senator representing South Carolina since 2003, has long been attacked as a “RINO” by Republicans, but now many Republicans are celebrating “Lindsey Graham 2.0.”

In the wake of the confirmation, Graham seems to be ready to continue in his newly aggressive persona. The next target of Senator Graham’s ire is none other than Senate Minority Leader Chuck Schumer, who Graham attacked on Fox News Sunday yesterday for politicizing the confirmation process.

Graham held up a list of judges to Chris Wallace and said, “This is a list that was compiled in November, but [Trump] actually put it out during the campaign.” The senator then rhetorically asked Schumer, who was not present, “There are twenty-something people on this list; I'm asking Chuck Schumer, name five, name three, name one that would be okay with you.”

“Brett Kavanaugh was a mainstream judge I would've chosen if I had been president. [Former President George W.] Bush supported him. Everybody running for president on our side believes that Brett Kavanaugh and Neil Gorsuch were outstanding conservative jurists. The other side wants to cancel the election,” Graham said. “So, Chuck, you want someone new? Look at this list and see anybody you agree to, but what you want to do, Senator Schumer, is to overturn the election. We are not going to let you pick the judges. If you want to pick judges, then you need to win the White House. When Obama won that, I voted for two judges that he picked. So, Chuck Schumer, name one person on this list you think is acceptable.”

In fact, Brett Kavanaugh was first mentioned as a possible appointment to the Supreme Court by 2012 Republican candidate Mitt Romney. Kavanaugh’s name was circulated on an unofficial list of Supreme Court nominees circulated in October 2012 by the Romney campaign. President Trump’s first appointment to the Court, Neil Gorsuch, also made Romney’s short list.

Lindsey Graham first emerged as a hero to the Republicans who formerly reviled him on Sept. 27 when he delivered a fiery attack on Democrats after the testimony of Christine Blasey Ford, who he called a “nice lady, who has come forward to tell a story that's uncorroborated.” Graham added, “I'm not going to reward people for playing a political game” by hiding the accusation until the end of the hearings to delay the confirmation vote.

A week later, Graham was back, telling a protester, “You've humiliated this guy enough and there seems to be no bottom for some of you.”

“Why don't we dunk him in water and see if he floats?” Graham added, alluding to an old method of testing women accused of being witches.

In the midst of the battle, Graham also became a popular meme. A picture posted to Twitter by Benny Johnson of the Daily Caller shows the smooth South Carolinian straightening his tie with a smile as an anti-Kavanaugh protester screams in the background.

Despite Graham’s newfound support for President Trump, his popularity among Republicans probably won’t last. Graham’s support for immigration reform once earned him the moniker “Grahamnesty” among the immigration hardliners who form Trump’s base. Like John McCain, Graham also has a history of crossing the aisle to work with Democrats on issues like climate change. So far, there is no indication that he has changed his mind on these issues.

“I’ve been applauded, and I’ve been a-booed,” Graham told reporters last week. “I know my day will come. I’ll do something that this moment in time will pass. I’ll talk about climate change and overturning Citizens United. These things come and go.”

For now, though, Graham is riding high in conservative circles and will help Republican candidates rally the base ahead of the midterm elections. “I've never campaigned against a colleague in my life,” Graham said, “but that's about to change. I'm going to go throughout this country to let people in these purple states, red states were Trump won, know what I thought, know what I think about this process.”

 Originally published on The Resurgent

Why This Rape Victim Is Pro-Kavanaugh

Much has been written about the #MeToo opposition to Brett Kavanaugh’s nomination to the Supreme Court. The accusations of sexual misconduct against Judge Kavanaugh have stirred many to protest his impending confirmation to the Supreme Court. However, scant attention has been paid to the victims of sexual violence who support Kavanaugh.

One of the survivors of sexual assault who strongly supports Brett Kavanaugh is Debi Thornton of Columbus, Georgia. In the interest of full disclosure, I’ll state here for the record that Mrs. Thornton is my beautiful wife of 18 years.

When she was 15-years-old, Debi was raped by three men as she walked through a wooded area between the high school she attended and the middle school where her mother was a teacher. The men threatened her life if she told anyone what happened. Debi didn’t tell for several days, but her family noticed a change in her personality after the attack. She eventually told her parents what had happened and they notified the local authorities.

What happened after that still makes Debi feel angry. She eventually identified one of the men who was a local star athlete who had graduated years before the attack after she saw him in walking around at a high school football game. The sheriff’s department took her to the Georgia Bureau of Investigation where she passed a polygraph exam. Despite the polygraph results, the local law enforcement never pursued the case and Debi never got justice. The man who raped her went on to attack two other young girls, was kicked out of two colleges and today is a registered sex offender in her hometown.

When it comes to Brett Kavanaugh, Debi says, “I think he’s a good guy and I don’t think he did it.” She adds, “I think he was defending himself and his family during the testimony when he got angry. “I think anyone who’s accused of anything like this would fight tooth and nail,” she says, “I mean, who wouldn’t get angry?”

When Debi really starts talking is when she discusses Christine Ford, a woman she says is “a liar.” She says that victims “remember everything about their attack.” Debi says that “my story has not changed over the years” as Ford’s story has. “You don’t forget the details.”

“When something like this happens, others around you see something has changed within you and they keep pushing you until you tell somebody,” she added, “you don’t wait that long. Even if you don’t go to the police, you tell somebody.” She also says that “Ford’s friends and family would have noticed a change in her behavior following the attack.” So far, no one has come forward to testify that they noticed a change in Ford’s personality after the alleged attack by Kavanaugh and there is no evidence that Ford discussed the attack with anyone prior to 2012.

Debi also did not find Ford’s testimony before the Senate believable. “I feel like there were no real tears,” she said. “I feel like it was an act. She didn’t get angry. You don’t just smile and giggle and look cute. You don’t high-five your lawyers when it’s over.”

“I would be angry if I was giving the testimony,” Debi said. “I wouldn’t say ‘I don’t remember,’ because you remember everything.”

“My case and hers were different because I didn’t know the men until I saw one at the game,” she said. “But everything about her, her facial expressions, everything, it just didn’t match up with how a true sexual abuse victim would act. The body language just wasn’t there. She was trying to be and look cute and sidestep questions. She had to think about what she was going to say and she had to look at her attorneys. You don’t have to get an answer from someone else because they weren’t there.”

“You can remember who did it, but you can’t remember what happened before or after?” Debi asked sarcastically. “That’s wishy-washy. She only got two questions on her polygraph and she can’t remember whether it was before or after her grandmother’s funeral. You don’t forget these things.”

In Debi’s case, even though she remembered everything, it took years to come to terms with her attack. Several years ago, seeking closure, she went back to her hometown in Georgia in hopes of examining her case file. She found that the sheriff’s department had destroyed the entire file. Even her permanent record from the school system had disappeared. She spoke with the city police chief who criticized how the sheriff’s department had handled the case but said that the statute of limitations had run out on the crime.  

In late September, as the allegations mounted against Kavanaugh, Debi went on Facebook Live to give her own testimony about her attack. She notes that she was very emotional in her recording, unlike Ford in her Senate testimony. She notes that she has spoken with other victims of sexual abuse who are also skeptical of Ford’s testimony on the “Confirm Kavanaugh” Facebook page.

“I don’t want to make this political,” said Debi. “Because sexual abuse shouldn’t be political, but if Ford really cares about sexual abuse she should donate the money from her Go Fund Me accounts to a sexual abuse victims foundation.”

“I do think she should be charged [for perjury],” said Debi, choking back emotion, “And everyone that helped her concoct her little skit.”

Debi has mixed emotions on the #MeToo movement in general. “I think it would have been really good to highlight it,” she said, “but many jumped on the bandwagon because they wanted personal attention and were falsely accusing people. Some probably were telling the truth, but a lot of them fabricated things just to get attention or because they were mad at somebody.”

“You have to look at the evidence,” Debi said. “Women don’t always tell the truth. You have to look at body language and the evidence. People need to think for themselves and not just go by the political party. This shouldn’t be about politics.”

Originally published on The Resurgent

A Fitting Legacy For Brett Kavanaugh

With the news that Susan Collins (R-Maine) and Joe Manchin (D-W.V.) intend to vote to confirm Brett Kavanaugh to the Supreme Court tomorrow, the bitter confirmation fight appears to be nearing an end. Soon the question will be what Justice Kavanaugh will be like. What will be his legacy on the Court?

A popular meme going around in conservative circles gloats, “Every time he makes a ruling for the next 40 years, [Justice Kavanaugh] thinks about how Democrats tried to ruin his life with lies and deceit [sic].” The implication is that Kavanaugh will remember his treatment at the hands of Senate Democrats and will let personal emotions affect his decisions. I sincerely hope that this is not the case. If I thought that this meme described Kavanaugh’s legal philosophy, I would have to oppose his confirmation. As a conservative and a constitutionalist, I would prefer that Justice Kavanaugh’s rulings were based on the Constitution and the written text of other laws rather than sour grapes.

Unfortunately for America, many Republicans don’t seem to want an objective justice in the mold of Scalia. Like liberal Democrats, they want a justice who gets his legal reasoning from the “mystical aphorisms of the fortune cookie.” The difference is that they want a justice with a right-wing fortune cookie instead of a left-wing one.

This outlook is evident from a recent case in which Neal Gorsuch ruled against the Trump Administration on an immigration case. Never mind that Trump’s Department of Justice was trying to twist the law to make it say something that Congress never intended. Never mind that Gorsuch ruled the same way that Scalia did. He’s our justice, he should rule for us was the reaction from most Republicans.

My fervent hope for Justice Kavanaugh is that he can put the bitterness of his confirmation behind him and rule on the merits of each case and the law as it is written. I don’t want to see another judicial activist seated on the Court, even if I agree with that activist most of the time.

The best legacy that I can imagine for Justice Kavanaugh is one of restraint. The Court that includes Kavanaugh should be very hesitant to make rulings that are based on the whims of the justices rather than the laws that were passed by Congress. Conservative elites don’t know what is best for every American any more than liberal elites do.

Kavanaugh’s confirmation was so acrimonious in large part because the Supreme Court’s importance has become outsized. The Founders never intended for nine people to make sweeping rulings that fundamentally change the country without input from voters, but that is where we are today. When Congress can’t pass a law, activists look the courts to pass it from the bench. I hope that a constitutionalist majority on the Supreme Court will help to change that.

If the Court restrains itself from activism then Congress will return to a more prominent position in the federal government and will have to do its job of passing laws. If activists don’t look to the Court to make laws then the importance of confirmation hearings will wane. The Court will become more objective and less controversial.

In the final analysis, if Brett Kavanaugh does what I hope he will do as a justice, the Supreme Court will be a very different institution that will have far less impact on American life than has been the case for the past few decades. That would be a fitting legacy for Brett Kavanaugh.

Originally published on The Resurgent

Republicans Close Enthusiasm Gap Amid Kavanaugh FIght

Much of the election news for the midterms up to this point has been bad for Republicans, but now there is a bright spot for the GOP. A new poll shows that the Democratic advantage in voter enthusiasm has all but disappeared.

The poll, conducted by Marist for NPR and PBS, shows that a 10-point advantage in July for Democrats rating the election as “very important” has been largely negated. The new poll shows Democrats with only a two-point advantage, which is statistically a tie.

The poll results do not show that Democrat enthusiasm is wavering. Rather, they indicate that Republican enthusiasm is catching up. In July, 78 percent of Democrats said that the election was “very important” compared to only 68 percent of Republicans. In the most recent poll, 82 percent of Democrats and 80 percent of Republicans consider the election “very important.”

The poll also indicates that the Democrat advantage in which party candidate voters support has been eroded. The 12-point Democrat advantage in July was down to 6 points in the current poll. Forty-eight percent prefer Democrats to 42 percent for Republicans.

The polling suggests that the confirmation fight over Brett Kavanaugh has awakened some parts of the Republican base that were unexcited about the performance of the GOP under President Trump. The attacks on Kavanaugh have stoked widespread anger and indignation among Republicans.

“The result of hearings, at least in the short run, is the Republican base was awakened," noted Lee Miringoff, director of the Marist Institute for Public Opinion, told NPR.

“If there aren't 34 dramatic moments [between now and the election], it will be 'my base versus your base,' " Miringoff said. "The Republicans' approach has been and continues to be, all about the base. This is their M.O., and that's what we're seeing. That works if turnout is not high.”

The Republican strategy to push forward with the Kavanaugh confirmation is an attempt to fire up the party’s base, but the strategy is not without risks. One of these risks is shown in the response to the question of whether a voter is more likely to support a candidate who votes for or against Kavanaugh. By a nine-point margin, voters prefer candidates who oppose Kavanaugh. The opposition to Kavanaugh has increased from a two-point statistical tie in July. Among independents, 22 percent favor candidates who back Kavanaugh while 40 percent like candidates who oppose him.

The new poll shows the beginning of what may be a surge in Republican enthusiasm for the elections. The downside for the GOP is that Kavanaugh, like Trump, is not popular outside the Republican Party. The Marist poll puts Kavanaugh’s approval at 36 percent with 47 percent disapproving. Confirming Judge Kavanaugh over the objection of a plurality of the country could excite the Republican base, but may also prod independent voters to go blue.

Originally published on The Resurgent

Republicans May Snatch a Supreme Court Defeat from the Jaws of Victory

Republicans may be about to snatch defeat from the jaws of victory when it comes to the Supreme Court. The decision to have the FBI investigate Brett Kavanaugh may well delay President Trump’s appointment to the Supreme Court so long that it won’t be possible to appoint a conservative to the seat.

As yet, there is little evidence that Christine Blasey Ford is correct in her identification of Brett Kavanaugh as the man who attacked her sometime in the early or mid-1980s, but that may no longer matter. Since last week’s Senate testimony, the goalposts have shifted from the question of whether Kavanaugh sexually assaulted Ford to whether he lied under oath.

A central thrust of the argument against Kavanaugh is now that he committed perjury by lying about his behavior as a young man at Georgetown Prep. Several former classmates have already come forward to say that the judge has not been honest about the extent of his drinking, his sexual activities and the meanings of slang terms written in his yearbook. If the FBI investigation uncovers evidence that Kavanaugh has been lying to Congress, then it might not only lend credence to Ford’s allegations, but it would also undermine Kavanaugh’s credibility in general. Having a wild adolescence is one thing, but lying about your past in current testimony is another.

The fact that the White House expanded the scope of the investigation also works against Republicans. The midterm elections are a month away and the investigation will last at least until the end of next week, assuming that it is not expanded further in terms of scope and time. Even if the FBI investigation comes up clean, Republicans will be forced to vote on an unpopular nominee shortly before a hotly contested election. That scenario could cost the GOP even more seats.

The other scenario is even worse. If the investigation uncovers more embarrassing facts about Kavanaugh’s past, Republicans could find themselves in a position where President Trump has to vet, appoint and confirm a new nominee in the short time before the new Congress is seated, which may well contain a Democrat majority in the Senate.

Lame duck Republicans may find themselves hard pressed to confirm a Supreme Court candidate. Moderates such as the usual suspects (Flake, Collins and Murkowski) could delay or vote no, especially if the election turns out to be a rebuke of President Trump and the GOP, and there would be absolutely no chance of having Democrats cross the aisle to confirm. If Democrats win control of the Senate, the Supreme Court may well soldier on with eight justices for the next two years.

Of course, President Trump had no choice but to authorize an investigation after Sen. Jeff Flake’s threat to oppose Kavanaugh. The slim GOP majority cannot afford any deserters and Flake may well have taken Collins and Murkowski with him.

The big question with no answer is whether Flake would have threatened to derail the nomination if he had not been party to a multi-year feud with President Trump. Flake has long been a critic of President Trump and the president returned the favor by working to undermine the senator’s reelection campaign, eventually forcing Flake into retirement. If Donald Trump had been nicer to Jeff Flake would Kavanaugh be celebrating his confirmation now? There is no way to know for sure.

In the end, Ford has an inconsistent story, Kavanaugh is contradicted by his classmates and Trump has a habit of hurling insults. There is a lesson here that everyone involved should take to heart: Words matter.

Originally published on The Resurgent

Just Say No To Me-Too McCarthyism

The campaign against Brett Kavanaugh has been likened to a witch hunt. While it’s true that the unverified claims against Judge Kavanaugh are reminiscent of the days when people denounced their neighbors for supposedly practicing witchcraft, it also resembles a much more recent period of American history: The McCarthy era.

Senator Joseph McCarthy (R-Wisc.) became infamous for his hunt for communist infiltrators in the US government from 1950 to 1954.  McCarthy’s witch hunt began with a speech on February 9, 1950 in which he claimed to have a list of 205 members of the State Department who were “members of the Communist Party and members of a spy ring.” McCarthy made accusations – without evidence – against a number of people both inside and outside of government.

McCarthy had a large following but eventually overplayed his hand when his Senate Permanent Subcommittee on Investigations held hearings to investigate the army. When the army’s legal representative, Joseph Welch, asked McCarthy to provide his list of communists to the committee, McCarthy accused a member of Welch’s law firm of being a communist, Welch fired back, “Have you no sense of decency, sir, at long last? Have you left no sense of decency?” About the same time, Edward R. Murrow, a prominent journalist of the day, attacked McCarthy on his show. The two incidents caused McCarthy’s support to ebb.

The attacks on Kavanaugh are similar to McCarthy’s tactics. People accuse him of sexual assault and rape without any corroborating evidence. Like McCarthy’s accusations of communist conspiracies, the sum total of the accusations against Kavanaugh is the accusations themselves.

I don’t know whether Kavanaugh’s accusers are telling the truth or not, whether they are mistaken or not or whether their stories are exaggerated. What I do know is that none of the women who have come forward have presented evidence or witnesses to support their claims.

If the only evidence that Americans now need to destroy a person’s life is an accusation without supporting evidence, then no American is safe. Unfounded allegations can be levied against anyone, male or female. Whether they are to be believed depends more on which party they belong to than the evidence at hand.

Sexual assault is a serious matter, just as communist infiltration was in the 1950s, but spurious charges only serve to distract from the real problem. If Kavanaugh’s appointment is scuttled by charges without supporting evidence, then the tactic will be used over and over again until Americans reject it as they rejected Joseph McCarthy. Real victims of sexual abuse will be lost in the background noise.

More than an unsupported accusation should be required before we, as a country, decide to ruin a man’s life and career. Brett Kavanaugh’s record as a lawyer and judge has been spotless for almost 30 years. To stop his confirmation, the Democrats had to go back more than three decades to impeach his character with allegations not supported by witnesses or evidence.

Edward R. Murrow’s words from 1954 are just as applicable today as the modern McCarthys seek to destroy an honorable man.

“This is no time for men who oppose Senator McCarthy's methods to keep silent, or for those who approve,” Murrow said. “He didn't create this situation of fear; he merely exploited it -- and rather successfully. Cassius was right. ‘The fault, dear Brutus, is not in our stars, but in ourselves.’”

Originally published on The Resurgent

It's Time To Confirm Brett Kavanaugh

Senate Republicans should bite the bullet and move ahead with the confirmation of Brett Kavanaugh.

I am very sympathetic to women who have been the subject of sexual harassment or abuse, but the accusations presented by Christine Blasey Ford and Deborah Ramirez both lack supporting evidence. In the case of Ford, the evidence was so weak that Senator Dianne Feinstein (D-Calif.) sat on the accusations until a week before Kavanaugh’s scheduled confirmation vote. No corroborating evidence has been presented to back up Dr. Ford’s testimony and three people (Patrick Smyth, Mark Judge, and Leland Keyser) in addition to Judge Kavanaugh have denied the allegations.

Kavanaugh’s second accuser only came forward as Republicans were planning to move forward with Ford’s testimony. As Erick Erickson pointed out, Ramirez, who waited as long as possible to come forward, seems uncertain that it was even Kavanaugh who exposed himself to her. The New Yorker did not corroborate Ramirez’s claims with other witnesses. There seems to be some doubt that Kavanaugh was even at the party in question.

Unlike Roy Moore’s accusers, there is so far no evidence to back up the claims from either woman. Unlike Donald Trump’s Access Hollywood tape or Corey Booker’s 1992 college newspaper article, there is no tape or written mea culpa in which Kavanaugh admits to questionable behavior. Unlike Al Franken, there is no photo of Kavanaugh with his hand on an accuser’s nether regions.

It seems obvious that the allegations were brought forward by Democrats only to delay Kavanaugh’s confirmation vote. The Democrats apparently hope that they can delay the confirmation vote until after the new Congress takes office next year or at least until after the midterm elections. In that case, they could argue that the Senate should follow the example of Merrick Garland and delay the confirmation vote until the new Congress is seated.  

It’s time to put up or shut up. If the Democrats cannot bring forward more substantial evidence that Brett Kavanaugh should not be confirmed then Republicans should forge ahead immediately following Dr. Ford’s testimony on Thursday. Unless Ramirez can present more evidence, the Senate should not dignify her accusation with the opportunity to testify.

The problem with forging ahead is that Republicans only have a two-vote advantage in the Senate. If Republican mavericks such as Susan Collins (Maine) or Jeff Flake (Arizona) cross the aisle then the result would be an embarrassing defeat for the GOP. Nevertheless, holding the Republican caucus together on a matter so clear-cut as the accusations against Kavanaugh would be a worthy issue for a test of Majority Leader Mitch McConnell and President Trump’s ability to lead their caucus.

Although there is potential for some political blowback from moving ahead, there is also the possibility that confirming Kavanaugh would help the Republicans in the midterms. A successful confirmation could help excite the Republican voters where a failure to confirm might depress Republican turnout. At any rate, dire midterm forecasts suggest that the GOP has little to lose with a confirmation. If Republicans cannot come together to resist the unsubstantiated smearing of political appointee like Brett Kavanaugh, there would be little point in returning their Senate majority anyway.

Originally published on The Resurgent