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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New at Live Action: TX Abortion CEO Fear-Mongers at TIME

As pro-lifers mark the 43rd anniversary of Roe v. Wade with mourning for its victims and resolve to set things right, abortion advocates are commemorating it with a mix of ghoulish celebration and fear-mongering over the possibility of Roe falling. In Time Magazine, Whole Women’s Health CEO Amy Hagstrom Miller and reproductive historian Rickie Solinger write a commemoration that leans heavily toward the latter, inadvertently demonstrating why overturning this monstrous ruling is so vital.

Today, where a woman lives determines her access to abortion services, and states mandate whether she is required to have (and look at) an ultrasound beforehand, whether she must obtain parental consent, whether has the right to have a medical abortion, among other conditions. Wherever she lives, she has to assess the political and economic environment into which her child would be born, as she decides whether to continue her pregnancy.

If the Roe court had addressed all the additional factors Miller and Solinger wish they had, their ruling would have even less to do with the Constitution’s actual meaning than the already-bankrupt decision they gave us.

Read the rest at Live Action News.

New at Live Action: Pro-Abortion HuffPo Attack on Ben Carson Completely Fails

Following Dr. Ben Carson’s strong stand for life over the weekend on Meet the Press, the Huffington Post is attacking the presidential candidate with an open letter to Carson by playwright, political science professor, and self-professed “ordained minister and a person of faith” Monica Bauer.

After some lip service to how Carson “seem[s] like a sincere person who wants to do the right thing,” she proceeds to challenge him on “a couple of things that just maybe no one in your circle has ever discussed with you.”

As we will soon see, this condescension is mostly projection:

First of all, if it is as simple as all that, and all abortions were about killing a baby, how do you explain the Supreme Court ruling in Roe v. Wade? This was a 7-2 decision. It was not simply liberals versus conservatives.

Read the rest at Live Action News.

When Will We Get Serious about Judicial Tyranny?

A Republican presidential field with over a dozen candidates splitting conservative voters may be a recipe for political disaster, but one of the silver linings is that with so many dueling personalities, some are bound to voice overlooked ideas to a wider audience than they’re used to.

So far, that’s been one of the only good things to come out of Mike Huckabee joining the fray. He’s made directly attacking the judiciary’s assumed constitutional monopoly a recurring theme over the past several months, from his January suggestion that we defy the Supreme Court if they impose same-sex marriage nationwide to his May campaign announcement blasting politicians for “surrender[ing] to the false god of judicial supremacy.”

His comments got a little debate among the commentariat and more than a little hysteria from the press, but nowhere near the conversation they should have sparked. Maybe it was the messenger—while Huck’s nanny-state, pro-amnesty, soft-on-crime, snake-oil record should absolutely keep him far, far away from the White House, conservatives can’t afford to let our rightful distaste for the Huckster distract us when he stumbles upon something important. Continue reading