OPINION

BRADLEY R. GITZ: Disaster averted, for now

It was a dangerously close-run thing, as the Democrats' attempt to smear Brett Kavanaugh with unsubstantiated charges dating back to his high school years fell just a couple votes short of succeeding.

All kinds of mud were thrown at the wall, hoping that sheer quantity of accusation would obscure that there was evidence for none.

If they had been allowed to get away with it, many of the most cherished principles of American political life, of civil society in general, would have been lost, principles like burdens of proof and presumptions of innocence that protect all of us, even Democrats.

Within this context, the alleged parallels between Democratic treatment of Kavanaugh and Republican treatment of Merrick Garland are suggestive of historical ignorance--Barack Obama almost certainly knew that a GOP Senate would delay any hearings for Garland until after the 2016 presidential election, as there was no constitutional requirement to do otherwise and plenty of reasonable, even nonpartisan reasons for waiting, some of which were articulated by a former chair of the Judiciary Committee who later became Obama's vice president (the "Biden rule," as in Joe).

In any event, Garland didn't have his reputation forever tarnished by uncorroborated allegations dating back to his teenage years, including fantastic claims of participation in gang rapes leveled by porn lawyers that Senate Democrats and their media auxiliaries pretended to take seriously for political effect. Indeed, at last glance Garland continues to pursue a successful career as what he was before Obama nominated him, a respected judge on the Court of Appeals for the District of Columbia Circuit, with perhaps a touch of martyrdom in liberal circles added in.

In short, and for those incapable of making logical distinctions, exercising the Senate's constitutional prerogatives (Garland) isn't the same as blatant character assassination (Kavanaugh).

It is ironic that what happened to Kavanaugh concerns the appointment of a justice to the highest court, because if justice truly exists then the scurrilous Dianne Feinstein will now be censured by the Senate and sent into a much belated retirement, the presidential aspirations of the buffoonish Cory "Spartacus" Booker and Kamala Harris will be put to paid, and the Democrats will lose rather than gain seats in the Senate next month, ensuring that the orchestrator of the smear campaign, Chuck Schumer, never gets to preside over it gavel in hand.

At the root of Democratic deceit is, of course, desperation; more specifically fear over the possibility that Donald Trump's court appointments will foreclose the left's ability to do what it has been routinely doing now for 50 years or so, which is using the federal courts and congenial leftist judges to enact leftist public policies that they haven't been able to get through elected legislatures.

Indeed, the combination of the retirement of swing justice Anthony Kennedy, the confirmation of Neil Gorsuch and now Brett Kavanaugh, and the advanced age of liberal justices Ginsburg (85) and Breyer (80) imply not just the possibility of denial of future court victories but also repeal of some of the ill-gotten gains, most conspicuously Roe v. Wade.

Roe was, of course, what all the smears and outrageous accusations were about, not the drinking habits of a teenager or mysterious slang in high school yearbooks or something expediently called "judicial temperament" (as if a 53-year-old married man with kids should react to accusations of orchestrating gang rapes with anything other than white-hot fury).

Roe remains the quintessential modern case of untethered judicial activism, of judges run amok with threadbare constitutional reasoning derived from precedents based on threadbare constitutional reasoning (the "emanations" and "penumbras" of Griswold v. Connecticut). Democratic desperation in defending Roe to the ugly end-justifies-the-means extent witnessed with Kavanaugh is a consequence of its illegitimacy as jurisprudence.

For those of us who support legal access to abortion, Roe was a disaster because it abruptly interrupted a trend within public opinion that would have likely resulted in liberalization of the nation's abortion laws without judicial intervention. For those of us who support that much more important value called the rule of law, Roe was a travesty because it was based on no reasonable interpretation of our nation's highest law, the Constitution.

Indeed, to this day I have never met anyone, even learned law professors, who can give a persuasive defense of the legal reasoning in Roe. Because there isn't one, and there isn't one because there is ultimately no constitutional right to abortion, however much we might wish there to be.

So a modest proposal intended to restore some semblance of sanity to the court confirmation process, perhaps as a first step toward defusing the dangerous "culture war" that has now reached a peak in the Kavanaugh spectacle: Go ahead and overturn Roe and thereby return the issue of abortion to the democratic process where it once was and truly belongs.

Then those of us who support legal access to abortion can do the hard work of passing legislation at the state and federal levels to protect it. And, more important still, use the amendment process contained in the Constitution itself to make it a genuine, firmly grounded right rather than a fake one spun out of thin air by activist judges.

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Freelance columnist Bradley R. Gitz, who lives and teaches in Batesville, received his Ph.D. in political science from the University of Illinois.

Editorial on 10/15/2018

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