Kavanaugh's epic mistake

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Kavanaugh's epic mistake

If confirmed to the Supreme Court, Brett Kavanaugh could reshape the law and America for decades. His fate rests in the hands of two pro-choice Republican Senators: Susan Collins (R-ME) and Lisa Murkowski (R-AK).

To vote for Kavanaugh, Collins and Murkowski need plausible deniability. They don't want to be held responsible for ending the constitutional right to abortion in America. So they are seeking indications that Kavanaugh would respect Roe v. Wade, the seminal case which established the right to an abortion, as an important precedent.

"I would not support a nominee who demonstrated hostility to Roe v. Wade," Collins told CNN in July.

Murkowski told the Washington Post that the impact a nominee would have on Roe would be a "significant factor" in her vote.

During the hearing, Kavanaugh sought to keep his views on the right to abortion ambiguous, calling Roe "important precedent" while deflecting further questioning on the subject. This is what he needs to do to win Collins and Murkowski's votes.

But Kavanaugh made a big mistake. Under friendly questioning from Senator Ted Cruz (R-TX), he unambiguously revealed that he believes Roe was incorrectly decided and should be overturned.

This should make it much more difficult, if not impossible, for Collins and Murkowski to vote for Kavanaugh.

Why wasn't this admission a bigger story? It was buried in some legal jargon. Let's break it down.

The rest will be unwritten

To understand Kavanaugh's big mistake, we need first to establish a core legal concept.

Some of the rights in the Constitution are "enumerated." That means they are written right in the text. The First Amendment, for example, enumerates "freedom of speech" as a right.

Over time, however, the Supreme Court has recognized some "unenumerated" rights. These are rights that aren't explicitly mentioned in the text of the Constitution, but the court has ruled are there by implication. Unenumerated rights recognized by the Supreme Court include the right to travel, the right to privacy, and the right to contraception.

The right to an abortion, established by Roe v. Wade, is another unenumerated right based on the right to privacy.

The key question is: When should the court recognize an unenumerated right? In answering the question, Kavanaugh blew his cover.

What the Gluck?

As part of a series of softball questions, Cruz asked Kavanaugh about unenumerated rights.

"[T]he Supreme Court precedent protects certain unenumerated rights so long as the rights are, as the Supreme Court said in the Glucksberg case, rooted in history and tradition," Kavanaugh replied.

This sounds extremely boring. But Kavanaugh had just revealed his real views on abortion rights.

Glucksberg was a Supreme Court case decided in 1997 where the court found that there was no unenumerated right to physician-assisted suicide because such a right was not "rooted in history and tradition."

Kavanaugh was very clear that this is the test he would apply to all unenumerated rights, which include the right to abortion.

"[A]ll roads lead to the Glucksberg test," Kavanaugh added.

Going all the way back to... 2017

To understand the significance of what Kavanaugh said to Cruz last week about Glucksberg, look to Kavanaugh's 2017 speech at the American Enterprise Institute. In the speech, Kavanaugh said unequivocally that abortion would not qualify as a Constitutional right under the Glucksberg test.

Of course, even a first-year law student could tell you that the Glucksberg approach to unenumerated rights was not consistent with the approach of the abortion cases such as Roe v. Wade in 1973 — as well as the 1992 decision reaffirming Roe, known as Planned Parenthood v. Casey.

In 2018, Kavanaugh said he would apply the Glucksberg test to Roe and other more recent cases affirming the Constitutional right to abortion. In 2017, Kavanaugh said Roe would fail the Glucksberg test.

He does not view it to be a close call. Kavanaugh says that "even a first-year law student" would understand that the Glucksberg test would invalidate Roe.

Putting it all together

1. Abortion is an "unenumerated" constitutional right.

2. Kavanaugh testified that all "unenumerated" rights should be subjected to the Glucksberg test.

3. Just last year, Kavanaugh said that Roe and other recent cases establishing a right to abortion would fail the Glucksberg test.

Kavanaugh's spin

Kavanaugh was asked about his 2017 speech -- and its implication on abortion and other unenumerated rights by Senator Chris Coons (D-DE).

Kavanaugh responded with a legal sleight of hand. He said that Glucksberg cited Casey, the most recent major case affirming Roe, as authority. He makes it seem like this is significant because it implies his support of the Glucksberg test wouldn't disturb the right to an abortion.

But Kavanaugh's statement is little more than an acknowledgment of basic facts. Glucksberg did not overturn Roe. But Kavanaugh said that he would apply the Glucksberg test moving forward and, correctly applied, it would invalidate Roe and other abortion cases.

Kavanaugh's radical vision

Kavanaugh makes it seem like his embrace of Glucksberg is in line with the current posture of the Supreme Court. "The test in Glucksberg… is a test that is guiding the Supreme Court moving forward," he said under questioning from Coons.

This is false.

In Obergefell, the landmark Supreme Court case establishing a right to same-sex marriage, Justice Kennedy, who Kavanaugh would replace, wrote that the Glucksberg test "is inconsistent with the approach this Court has used in discussing other fundamental rights, including marriage and intimacy."

"If rights were defined by who exercised them in the past, then received practices could serve as their own continued justification and new groups could not invoke rights once denied," Kennedy wrote.

Kavanaugh is not Kagan

Kavanaugh tries to claim that he has the same position as Justice Kagan, who did speak favorably about Glucksberg in her confirmation hearing. This, however, is a red herring.

First, Kagan's hearing took place before Obergefell was decided, so it had not been disavowed by the court. Second, Kagan never said that the right to abortion would not meet the Glucksberg test.

What the experts say

On Twitter, Columbia law professor Jamal Greene agreed that, by embracing Glucksberg and pretending it was the court's standard moving forward, Kavanaugh was signaling he would overturn Roe.

Jamal Greene@jamalgreene

This. Kavanaugh also repeatedly said Glucksberg is the guiding opinion in SDP cases. Glucksberg is not mention in Lawrence (except Scalia's *dissent*) and is explicitly disavowed in Obergefell. He was as clear as anyone gets on this stuff in a modern confirmation hearing. https://t.co/WeL8N2BRA0

September 9, 2018

"There have been zero Supreme Court opinions in unenumerated rights cases since Glucksberg applying that case's narrow test for recognizing unenumerated rights," Jim Oleske, a law professor at Lewis and Clark University noted.

What Kavanaugh is describing is a radical new vision that threatens not only abortion rights but also other unenumerated rights that are not based on history and tradition.

Counting to 50

For Kavanaugh to be confirmed, he needs 50 votes. (Vice President Mike Pence would break the tie.)

The Republicans control 51 seats in the Senate. No Democrats have announced their support for Kavanaugh. If Collins and Murkowski oppose the nomination and Democrats hold firm, there will not be enough votes to confirm him to the Supreme Court.

The media has largely accepted the narrative that Kavanaugh has it in the bag. While Kavanaugh's confirmation is the most likely outcome, this narrative was constructed by Republicans to demoralize the opposition to his nomination.

The hearings have concluded, but both Collins and Murkowski remain officially undecided.

They say they will not vote for a nominee that is hostile to Roe. Kavanaugh's comments on Glucksberg make it crystal clear where he stands on the issue. While cynicism is comforting, there is still time to try to convince Collins and Murkowski to stand by their words.

Summer is not over

While the Mueller investigation grabs the headlines, it is just one of many legal problems that threaten the Trump presidency.

Summer Zervos, a former contestant on The Apprentice, says Trump sexually assaulted her. Zervos "accused Trump of kissing her against her will at his New York office in 2007 and later groping her at a meeting at a hotel in California."

She went public with her accusations during the campaign and sued Trump for defamation in early 2017 after he called her a liar. Trump attempted to get the lawsuit dismissed, arguing a sitting president could not be sued in state court, but the court rejected his argument.

According to new legal filings, Trump "will provide written answers under oath" to questions posed by Zervos' legal team by September 28.

If Trump doesn't tell the truth, he could be charged with perjury.

Update on that Nike boycott

Conservatives have been promoting a boycott of Nike after it launched a new marketing campaign with Colin Kaepernick, the NFL quarterback who started kneeling during the national anthem to protest racism.

The boycott is not going well. Edison Trends, a research company that analyzes e-commerce, looked at the data.

This past Labor Day there was speculation that Nike’s Colin Kaepernick ad campaign could lead to a drop in sales. Edison Trends investigated the sales over the holiday and its research, at this point, does not seem to support that theory. In fact, Nike sales grew 31% from Sunday through Tuesday over Labor Day this year, besting 2017's comparative 17% increase.

Trump also claimed Nike stock was getting "absolutely killed."

Donald J. Trump@realDonaldTrump

Just like the NFL, whose ratings have gone WAY DOWN, Nike is getting absolutely killed with anger and boycotts. I wonder if they had any idea that it would be this way? As far as the NFL is concerned, I just find it hard to watch, and always will, until they stand for the FLAG!

September 5, 2018
Nike stock is up in September and up 29% year-to-date.

The company also unveiled its first ad in the Kaepernick campaign, and it's pretty good.

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