I haven’t yet written a post about the hearings for Justice Kavanaugh, although I did listen to most of the confirmation hearings prior to the sexual assault claims, and to every minute of testimony from both Brett Kavanaugh and Christine Blasey-Ford before the Senate Judiciary Committee. Mostly this is because to write, fact-check, and cite everything that needs to be said about it it going to take hours and hours to author and compile.
Putting aside the sexual assault allegations (and even, or especially, considering them if you get right down to it), let’s be absolutely clear on one thing about his nomination, the only thing that matters and the fact that explains everything that happened from the day he was nominated: this entire ordeal was about one thing only, and that is the fate of Roe v. Wade. There is nothing else that mattered about him or his nomination other than that he was seen as potentially the deciding vote in overturning that case and sending the question of abortion back to the states, so that each state can decide for itself how to properly regulate this matter.
Sit on that for a minute. Literally, nothing about Brett Kavanaugh or who he was mattered other than this political fact/perspective/possibility. It literally didn’t matter who he was, where he went to school, where he had practiced law, what his judicial history or philosophy was, what his reputation was among the profession, how many opinions he wrote, how he wrote them, or what issues they covered. His character didn’t matter. His personal history and professional conduct didn’t matter. All that mattered was that he could be the 5th vote in overturning Roe v. Wade. He was an empty vessel containing nothing but this political time bomb.
Antonin Scalia predicted this 13 years ago. Sadly, he was as prescient as ever, a veritable Cassandra, cursed to utter prophecies that were true but that no one believed. This is a fantastic lecture, and I highly encourage you to listen to it from the beginning, especially if you find he and originalism confounding and frustrating. But most especially, listen to the snippet below, an excerpt from the last few minutes of his talk. He explains exactly why a nomination like Kavanaugh’s was almost inevitable to happen the way it did, certain to proceed in the fashion it did during the confirmation hearings, and certain to come down to a strictly party-line vote in the senate.
Then ask yourself: is this really the way forward, and how we want this process to work now and until the end of our republic? Because I believe Justice Scalia to be right: this is the natural, inevitable, and only possible outcome from a “living constitution.”
The talk in its entirety