Opinion

Kavanaugh Confirmation — How to Wind and Send the Left Into Apoplectic Shock

As we all know, the left is in full melt-down mode regarding the nomination of Judge Brett Kavanaugh to the U.S. Supreme Court. Of course, it is all part of the Democratic playbook and the tired and worn-out fake moral outrage of the left. So how about we reverse the tables and use their own playbook against them? Let’s just get right to the point and look at Kavanaugh’s background and qualifications. In short, he is eminently qualified.

First you have the The American Bar Association endorsing Kavanaugh. Right there on page one of the statement by the bar, it is in black and white: “After careful investigation and consideration of his professional qualifications, a substantial majority of our Committee is of the opinion that the nominee is ‘Qualified’ for the appointment. A minority found him to be ‘Well Qualified.'”

Even the heavy left-leaning The Times & Democrat wrote a glowing review and endorsement of Kavanaugh on July 12, 2018: “It’s almost as if the foes and proponents are referencing a different person. Both are viewing the Trump nominee only through the prism of politics… Kavanaugh is a graduate of Yale Law School and former clerk to [Justice] Kennedy. He received bipartisan support in 2006 for his confirmation to the U.S. Court of Appeals for the District of Columbia Circuit. During 12 years on the federal bench, Kavanaugh has a distinguished record.”

So, assuming Kavanaugh is as qualified as his record portrays…what about public opinion?

Well, according to Rasmussen Reports, 83 percent of Americans expect Judge Kavanaugh to be confirmed, and by a margin of six to one, it is very likely he will be confirmed. This is something that the Democrats simply don’t get. They simply cannot accept that the majority of the American people want Judge Kavanaugh to be confirmed to the United States Supreme Court.

But as we have seen, this nomination and confirmation has nothing to do with qualifications or what is best for the country, but instead has everything to do with politics. The Democrats simply can’t stomach another constitutionalist being nominated to the highest court of the land.

But why?

You have to think about this logically. The nomination of Kavanaugh puts another staunch constitutionalist on the bench who believes in interpreting the constitution as written and that judges are there to “judge” and not “legislate” from the bench. Which is the complete opposite of the Democratic agenda.

Consider that almost every important policy the Democrats have enacted were not achieved through the legislative process. No, folks, they were achieved by getting the courts—think the 9th Circuit Court of Appeals—to legislate from the judicial bench. Almost every important issue that the Democrats have not been able to get through Congress has instead been implemented by activist judges. Take, for example, the case of the Colorado cake maker who refused to make a wedding cake for a same-sex couple. In Masterpiece Cakeshop v. Colorado Civil Rights Commission the court sided with Masterpiece Cakeshop, but only after a six-year legal battle, given that the lower courts consistently legislated from the bench against Masterpiece.

You see, the next Supreme Court appointment by President Trump may very well solidify the court to a right-leaning constitutionalist majority for the next 30 to 40 years or so. Consider, Justice Ruth Bader Ginsberg is not long for the bench. If I was a betting man, she will probably retire soonafter the November elections when she realizes that the Democrats are not going to take control of the House or Senate. That will open up another appointment for Trump and that will surely send the Democrats into apoplectic shock.

I am also willing to bet that Justice Clarence Thomas will retire once Ginsburg is gone. And, once again, it will be Trump to make the nomination. The Democrats are seeing their house of cards collapsing. The Trump presidency could potentially set a Supreme Court that could very well erase the entire agenda of the Democrats that took them 30-plus years to achieve. And you wonder why they are terrified.

There you have the background and the stakes…and why the Democrats are so violently in opposition to Kavanaugh. But here is how Kavanaugh can easily win the confirmation of the Senate and send the Democrats into apoplectic fits.

First, Kavanaugh can just underscore the fact that he easily made it to the federal judiciary bench with bipartisan support from both sides of the hall. What’s changed? Put the onus on them, considering most of the same politicians are still in office.

Next, he can easily shut down any question about his “judicial” leanings by consistently quoting the left’s Supreme Court darling, Ruth Bader Ginsberg.

You see, the favorite (repetitive) question to Supreme Court nominees is the question as to how the potential Justice would vote on a certain issue. Well, if we go way, way back to 1993 and the confirmation hearing of Judge Ginsberg, you will see she was asked this very question.

According to an article in The New York Times, several different members of congress kept asking her to “signal how she might vote on an issue that was certain to come before a court.” Her response was priceless: “This is something you must never ask a judge to do.”

It’s simple, folks. Asking a judge for a judicial decision before they have ever had a chance to hear arguments and to review the facts of a case is pure insanity. Further, I put forth that any judge that is willing to give you an opinion on an issue in just such a manner should never, ever, be confirmed to the bench. So don’t fall for that trap, Judge Kavanaugh.

Instead you need to flip the script, sir.

Consider the recent ruling on the Travel Ban Executive Order issued by President Trump. The Supreme Court ruled in a narrow 5 to 4 decision to uphold the ban. During oral arguments and in constant media talking-head armchair quarterbacking, many felt that the justices should have looked at what Trump said when we was a candidate running for the Presidency. Many felt that what Trump said about restricting immigration while he was a candidate was somehow a material fact to the case.

But Justice Ginsberg stated that they have to deal with the facts before them and not what someone said “before.” And in this, Justice Ginsberg is correct. Asking for a judge to review evidence and issue an opinion before being presented with all the facts, and to base an opinion on something someone said years before, is unethical and, quite honestly, illegal.

Look at it this way: let’s say years ago you said that you would burn your neighbor’s house down if he let his dog crap on your yard again. Years later, when you aren’t even in the state, your neighbor’s house burned down. Should you be arrested and tried simply because of something you said years ago? Now, consider it wasn’t even the same neighbor. The dog owners sold their house and moved away years ago? You have to deal with the facts of the case as they are presented.

So if that argument was good enough for Ginsberg, then it is certainly good enough for Kavanaugh. And if we are lucky, and it appears that we are, the Chairman of the Senate Judiciary Committee, Charles Grassley, will set the issue up perfectly. He is going to give Kavanaugh the perfect opportunity by asking him the “Ginsberg” question.

Based on the rules and protocol of the committee, Senator Diane Feinstein, the ranking Democrat on the committee will then follow. I am willing to bet that the first question she asks Kavanaugh will be his opinion on repealing Roe v. Wade.

This of course will set the precedent and tone for the rest of the Democrats on the committee. From Roe v. Wade we will move on to an opinion on repealing the Affordable Health Care Act (Obamacare), the issue of immigration, the separation of children at the border, impeachment of the President, and more. All of which, you can easily see, are the major talking points of the Democratic platform leading up to the November elections.

Of course, how this plays out will all depend on how Kavanaugh responds to the questions. His response should be the same one that Ginsberg gave back in 1993; “This is something you must never ask a judge to do.” And then use the same argument Ginsberg gave.

The Republicans can then issue the coup de grâce by simply asking the question: Should a candidate for the Supreme Court disclose their position on a case that has not yet been presented to the court, or without having heard arguments, or without having reviewed the facts?

For added horsepower, they could bring up the fact that Justice Elena Kagan was then the Solicitor General arguing in favor of the Health Care Act. During her confirmation process in the Senate Judiciary Committee, Kagan assured the committee in written responses to its questionnaire that she would follow the “letter and spirit” of 28 U.S.C. 455 which would basically require her to recuse herself.

Do you see the trap there? If he answers the committees question in any way other than with the Ginsberg argument, he sets up a precedent which would require him to recuse himself. Damn Democrats and their games.

Bottom Line: Don’t play their game, give them the Ginsberg argument, stick to your guns and your confirmation is assured. And if you do this, I guarantee you the left will go into apoplectic shock of near biblical proportion.

The opinions expressed here by contributors are their own and are not the view of OpsLens which seeks to provide a platform for experience-driven commentary on today's trending headlines in the U.S. and around the world. Have a different opinion or something more to add on this topic? Contact us for guidelines on submitting your own experience-driven commentary.
Rene Sotolongo

Rene is an OpsLens contributor and retired Navy Information Systems Technician Chief Petty Officer.

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