Better in their words…

Very good piece.
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WSJ 10/2/2018 William McGurn

As malignant as were the campaigns against Supreme Court nominees Robert Bork and Clarence Thomas, even they didn’t face accusations as vile and unrelenting as the unsubstantiated charges against Brett Kavanaugh. Adding to the injustice is that the frenzy surrounding his nomination isn’t really about him.

It’s about Roe v. Wade. The 1973 Supreme Court decision upended the laws of all 50 states on behalf of a constitutional right to abortion the Constitution somehow neglects to mention. Since then, the advocates of a living Constitution posit that while our Founding document is infinitely malleable, this one ruling is fixed and sacred.

Judge Kavanaugh’s great misfortune is to have been nominated at a moment when the party in opposition frets this fixed and sacred ruling could be overturned.

Never mind that Chief Justice John Roberts is unlikely to acquiesce to a move that would bring down the furies on his court. Or that it’s not clear Judge Kavanaugh would be any different, having assured senators that he regards Roe as “settled” and “an important precedent” whose central holding had been reaffirmed in Planned Parenthood v. Casey (1992). Or that over- turning Roe still wouldn’t make abortion illegal.

The problem is that even Roe’s most ardent champions know it is devoid of legal and constitutional substance. So they know it is vulnerable to a closer look by any serious jurist, including those who are themselves pro-choice. No wonder Sen. Dianne Feinstein tweeted, “It’s not enough for Brett Kavanaugh to say that Roe v. Wade is ‘settled law.’ ” Let me translate: Nothing personal, judge. But if you won’t declare that a decision laid down by seven unelected men in robes is untouchable, we have no choice but to do whatever it takes to keep you off the high court. This is what Democrats do when they see a possible fifth vote against Roe in play.

It’s what they did in 1987 when they transformed “Bork” into a verb. It’s what they are now doing to Judge Kavanaugh. They do it with the eager help of a press that has abandoned even the pretense of objectivity, and institutions such as the American Bar Association and American Civil Liberties Union, which have betrayed their own principles in the effort to bring this man down.

In this cause, there is no room for fairness and decency. When CNN’s Jake Tapper asked Sen. Mazie Hirono if Judge Kavanaugh deserved “the same presumption of innocence as anyone else” about the sexual-assault accusations against him, the Hawaii Democrat gave the game away. “I put his denial in the context of everything that I know about him in terms of how he approaches his cases,” she replied, noting he “very much is against women’s reproductive choice.”

Mr. Tapper understood instantly. “It sounds to me like you’re saying, because you don’t trust him on policy and because you don’t believe him when he says, for instance, that he does not have an opinion on Roe v. Wade, you don’t believe him about this allegation about what happened at this party in 1982” he asked.

Bingo.

Once again Antonin Scalia saw it all coming before anyone else. He laid it out in a biting dissent in Planned Parenthood v. Casey. Amid the circus the Kavanaugh nomination has become, it bears rereading.

Many assume the Roman Catholic jurist’s dissent was rooted in his personal opposition to abortion. But Scalia never spoke of his own views. And his Casey dissent is something to which even the most robustly pro-choice Americans could sign their names.

Far from settling the issue, 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.”

He went on. 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.” Today the nation marches to the beat of the dysfunctions Scalia laid out so well in his Casey dissent, to the point where we have just allowed the nominations process itself to be blown up. When the day comes that the Court reconsiders Roe, the justices will no doubt take seriously the arguments from stare decisis for leaving it be. Let us hope they consider as well the poisons Roe continues to inject into the American body politic, not least of which is the incentive to reward the character assassination of Republican nominees.

Brett Kavanaugh is a decent man with a lovely wife and two sweet daughters. He is also what the Democrats fear most on the courts: an honest judge. Which is why he and his innocent family are being destroyed before our very eyes.