October 9, 2018
This morning, the 102nd Supreme Court Associate Justice, Brett Kavanaugh, took his seat on the Supreme Court. (The Court’s official biography and photographic record of the swearing-in ceremony are available here.) After the Chief Justice, John Roberts, wishedKavanaugh a “long and happy career in our common calling,” the Court got down to business with a couple of arguments involving matters of criminal procedure. Thankfully, it was “business as usual” for the Court as Justice Kavanaugh joined the other Justices in asking a handful of questions of both advocates, and no protestors disrupted the solemnity of the arguments.
In today’s final Kavanaugh Column, we offer a summation of the Supreme Court confirmation experience, as we look back and consider the lessons learned in a historic confirmation battle, and look ahead to ask what the confirmation of Justice Kavanaugh may hold for the future of pro-life legal efforts – and of Roe v. Wade itself.
First, we should all be very clear about what this bruising fight was really about: the fundamental “right” to destroy human life in the womb. As William McGurn said recently in the Wall Street Journal, “the frenzy surrounding his nomination isn’t really about [Brett Kavanaugh]. It’s about Roe v. Wade.” There were other issues raised in the confirmation hearing – executive privilege, affordable healthcare, the Second Amendment – but they were strictly makeweight arguments that were intended to add gravity to the opposition’s efforts to hold up Roe. Roe is the heavenly body around which all of the Left’s values revolve, and the reason for its cosmology of an ever-evolving “living constitution.”
McGurn observes that the late Justice Antonin Scalia predicted America would come to this in his dissent in Planned Parenthood v. Casey in 1992:
Far from settling the issue [of abortion], Scalia wrote, Roe remains brittle because it lacks constitutional warrant. It represents the triumph of an “Imperial Judiciary” which “intensifies” the polarization over abortion by keeping the issue out of the democratic process, thus depriving the losers the compensating “satisfaction of a fair hearing and an honest fight….”
If the Supreme Court is simply to be a vehicle for choosing among competing values, in a democracy it should be the values of the voters that prevail. Thus, “confirmation hearings for new Justices should deteriorate into question and answer sessions in which Senators go through a list of their constituents’ most favored and most disfavored alleged constitutional rights.”
Hawaii Senator and Judiciary Committee Member Mazie Hirono, who with all Democrats save one voted against Kavanaugh, remained outspokenly critical of Justice Kavanaugh for both his record and the allegations against him. Hirono said she “doubts” the Supreme Court will overturn Roe, but she thinks it will “continue to chip away” at the right to abortion. And the confirmation hearing has damaged him, she claimed: “He’s going to be on the Supreme Court with a huge taint and a big asterisk after his name.”
So the biggest takeaway from this regrettable chapter in American political history is that pro-abortion forces will stop at nothing to protect the cherished right to abortion. As sobering as that is, it also offers a simple lesson for those of us committed to protecting life: we have to fight harder and smarter and be willing to go the distance. As abortion-related cases come before the Supreme Court, we do expect the Court to revisit Roe v. Wade, and ultimately to strike it down. Already there are cases making their way up through the lower courts that the Supreme Court could agree to hear and use to reconsider and overturn Roe, including cases based on AUL model bills such as the Prenatal Nondiscrimination Act, the Women’s Protection Act and our model legislation to defund Planned Parenthood and the abortion industry. But the fight doesn’t start there; it starts in state legislatures across the country, where the will to defend unborn persons is strongest, and in federal and state courts that will hear Planned Parenthood’s challenges to commonsense health and safety regulations that impact their bottom line. Together, we are rebuilding a Culture of Life in America, state by state, issue by issue. We believe Justice Kavanaugh’s intelligence, wisdom and compassion will lend much assistance to that effort, but we are looking beyond a fifth pro-life vote on the Supreme Court, to a nation whose laws ensure that every human life is welcomed, cherished and protected.