A Belated Reply to Ramesh Ponnuru on Kavanaugh and Roe

Ramesh Ponnuru has responded to my column last week at LifeSite, in which I take issue with his defense of Brett Kavanaugh’s testimony regarding Roe v. Wade. I appreciate the opportunity for a serious exchange on the subject; hopefully we can clarify some of the Right’s thinking on a tradition that’s caused so much trouble.

Ponnuru accurately summarizes my position; I think he can be fairly summarized as believing nominees shouldn’t commit to overruling specific precedents, but should be more willing to discuss a precedent’s strengths or flaws (from which senators and voters would obviously be able to draw more useful inferences).

Certainly, I agree that it would be improper for a judge to promise, for instance, “I’ll always rule however the National Right to Life Committee wants me to.” I also recognize the legitimacy of certain qualifiers, such as noting that a case involving abortion in some way doesn’t necessarily mean Roe’s legitimacy will be the question it hinges on.

Beyond that, though, I have never heard a persuasive reason why it would be improper for a nominee to commit to ruling certain ways on known legal questions. If a precedent is in fact illicit, I’ve never gotten a good answer why it’s wrong in principle to make reasonably sure that a nominee would overturn it.

Obviously, I can see potential danger in a judge agreeing to deliver a particular outcome in exchange for an appointment, but a bad ruling is hardly mitigated just because its signatories honestly believe in it. So shouldn’t the legitimacy of a pre-confirmation commitment depend entirely on whether the judgment being committed to is correct?

It seems perfectly straightforward to me that a judge’s explanation for his position would demonstrate to fair-minded observers whether it’s rooted in illicit partisanship or defensible legal philosophy, regardless of what conversations he and the president might have had beforehand as to whether they’re on the same page.

It also seems to me that consistently applying the no-commitment principle would take us to some pretty absurd places. Is anyone who’s ever openly criticized Roe, like William Pryor or Michael McConnell, automatically disqualified from joining SCOTUS? Sitting justices who’ve previously declared themselves for or against Roe in majority or dissenting opinions also have a “commitment” on the record that will telegraph their disposition in future abortion cases; how is that meaningfully different?

What’s the limiting principle to the no-commitment rule, and what do the above questions say about the rule’s merits for judicial nominees?

Finally, I’d like to make clear that despite my reservations about nominating Kavanaugh in the first place, I fully support confirming him in light of the Left’s vile campaign to destroy him.

It’s all-but inconceivable that withdrawing him at this stage would lead to confirming anyone better, his powerful testimony calling out “the Left” by name for its “calculated and orchestrated political hit” gives me some hope that he’s more of a movement conservative than he let on during the first round, and most importantly, the Left’s tactics of demonization and intimidation cannot be rewarded.

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