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Why the Meltdown over Kavanaugh

July 15, 2018 in Economics

By Doug Bandow

Doug Bandow

The end of the world is coming. At least, that is what the Left
believes will happen if the Senate confirms Brett Kavanaugh to the
Supreme Court. It will be the legal equivalent of Armageddon. Head
for the hills, or Canada, for refuge!

No doubt the appointment matters. Right-leaning presidents have
squandered many opportunities to move, if not transform, the high
court. The activist Warren Court was essentially a Republican
court, including Earl Warren, William Brennan, and Harry Blackmun.
The terrible GOP nominations continued: John Paul Stevens and David
Souter were particularly awful picks, social engineers determined
to remake society in their preferred image.

Sandra Day O’Connor and Anthony Kennedy were center-right,
but not interested in ending the Supreme Court’s role as a
continuing constitutional convention. Chief Justice John Roberts
worries more about the body’s image than the Constitution,
saving Obamacare based on grounds (the mandate was a tax) even
Democrats didn’t take seriously. The retiring Kennedy took
occasional flights of fancy when he sought to help people figure
out what it meant to be a human being in the universe, as opposed
to articulating what the Constitution meant.

For the left, judicial
appointments are about politics, not philosophy.

In contrast, the last Democratic appointee who moved noticeably
rightward may have been Byron White, nominated by President
John F. Kennedy
. President Lyndon Johnson’s, Bill
Clinton’s, and Barack Obama’s choices performed as
expected: promote a “living” Constitution which upholds
most every expansion of federal power and transforms society into a
liberal nirvana. Where leftish jurists do best is when they
advocate vigorously applying the few constitutional provisions
which they like — such as free speech and search and seizure.
Most everything else in the Constitution, contend liberal justices,
has been transcended by history.

The Right has a broad jurisprudential vision rooted in the text
and history of the Constitution. That is, it should mean roughly
what it was believed to mean at the time. There is a mix of
factors: text, drafters’ intent, and political compromise at
the time. Not everything is clear, sometimes general principles
aren’t easy to apply decades in the future to different
circumstances, and the political process is messy and full of
compromise. Nevertheless, if the document, whether Constitution or
statute, doesn’t have a reasonably fixed meaning, why bother
with it? Just admit judges can do what they want.

Which is the essence of liberal jurisprudence.

Whatever the theory, and there are many, its essence is that
jurists should override what those drafting and implementing the
document intended to achieve. Of course, laws and even
constitutions need to be adapted to changing circumstances. But
there is a prescribed way of …read more

Source: OP-EDS

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