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Justice Kavanaugh Sits: What does it mean for Roe v. Wade?

I sign up for emails from organizations with whom I share nothing philosophically, just to see what they are saying and how they are saying it.

Within seconds of the vote to confirm Judge Brett Kavanaugh on Saturday, I got an email from Alliance for a Better Minnesota (ABM), the group headed by Alida Rockefeller Messinger, former wife but very much current ally of Governor Mark Dayton.

ABM is like an umbrella group or holding company for cash to doll out to leftist candidates and causes. It really is leftist, too. Not many liberals left in these parts anymore. Now we have “progressives,” whatever that means.

It’s over.

Brett Kavanaugh, the judge who once questioned if Roe v. Wade is really “the settled law of the land,” will soon be the newest justice on the United States Supreme Court.

Step one of Donald Trump’s scheme to restrict women’s freedoms is now complete. Step two is the new Court repealing Roe. And the final step falls to red states everywhere, where at long last GOP-ers will be able to start legislating our reproductive freedoms out of existence.

What the email reveals is that the opposition to Kavanaugh was about two things: abortion and denying the outcome of the 2016 election.

Roe v Wade represents the breakdown of the Rule of Law and our Judeo-Christian culture. 

Even liberal jurists and thinkers concede that Roe v. Wade does not rest on solid constitutional ground. As the liberal and intellectually honest Alan Dershowitz said at our Fall Briefing last week,  abortion is a very serious thing. From a legal standpoint, the case was poorly decided; regulating abortion should have been left to the states. (I note that overturning Roe does not make abortion illegal.)  But does the confirmation of Kavanaugh mean that Roe will be overturned?

Probably not, at least anytime soon: judges, even liberal judges, are mindful of precedent, what is called settled law under the doctrine of stare decisis, even when it is settled on shifting sands, such as the medical “viability” rational in Roe v Wade.

And then there is the near-crucifixion of Kavanaugh at the hands of Democratic senators, including Minnesota’s Amy Klobuchar.

Who can take credit for saving the good judge? Senator Susan Collins, with a brilliant, pitch perfect brief before her colleagues.

Collins assured the Senate, and her constituents, that Kavanaugh viewed Roe v. Wade as settled law. By leading the call for Kavanaugh’s confirmation, she has insured that the Court will not take up cases, or at least be reluctant, to take up cases, that get anywhere near overturning Roe. The Chief Justice will probably even avoid cases that expand state regulations of abortion, at least in the near future. “Progressives” and conservatives alike fundraise around Roe being overturned, a case that should, for better or for worse, “keep on giving” for both sides for years to come.

Chief Justice Roberts, who has to protect the Court as an institution, must assume that there will be another Trump nominee, maybe two or more (Ginsburg, Breyer, Thomas), and that the next nominee will undergo a similarly vicious attack (which is why the next nominee should be a woman).

I said the email was also about denying the outcome of the 2016 election.

When you win the White House, you get to pick federal judges. The Senate gets to weigh in, but at the end of the day, it is a perk of the presidency and one of those nifty “checks and balances” that involves all three branches. Instead of waiting their turn, and making their case to the American electorate in 2018, the Democrats in Congress, and even a few Republicans, think they can deny Trump judicial appointments, and other  executive branch appointments, even though that is why so many Americans voted for Trump.

This kind of opposition makes our government highly dysfunctional and further splits the already dangerously divided nation. 

Oh and, of course the email was about raising money to defeat conservative candidates in Minnesota by “turning progressives into voters.” But again, it is all about abortion. Don’t they have any ideas?

With Kavanaugh confirmed, our reproductive freedoms — our futures — hinge on keeping extreme Jeff Johnson out of the governor’s seat.

This is what the old DFL party has become. (I think farmers should demand they stop using their name in vain.)

We should all breathe a huge sigh of relief that Justice Brett Kavanaugh is a sitting justice on the High Court this morning. Our Constitutional order is strained and challenged, but it has prevailed, again. 

Thanksgiving is really going to be tough this year.




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