Brett Kavanaugh’s Position On Roe V. Wade Is Just As Indefensible As Modern Conservatism Itself

I don’t want to spend an inordinate amount of readers’ time here discussing something that’s better left to legal experts and journalists who have spent their careers covering the Supreme Court.

That said, I’d be remiss not to at least print the confidential e-mails that came to light on Thursday amid the ongoing Senate Judiciary Committee hearings for Judge Brett Kavanaugh, Trump’s nominee for the Supreme Court.

Regular readers know that my main criticism of what counts as “conservatism” these days is that it increasingly rests on ignorance, religion and, most recently, a slavish propensity to abandon traditional, secular conservative values in the interest of pacifying a demagogue in Donald Trump.

On the latter point, the GOP has become a personality cult. There is nothing “conservative” about Donald Trump’s fiscal policies and yet Republicans have thrown caution the wind and set the U.S. on a fiscal trajectory that’s even more perilous than the one the country was already on. This is no secret. Ballooning the deficit with stimulus at a time when the U.S. economy was already doing well makes no sense and is not even remotely consistent with Republicans’ supposed affinity for fiscal rectitude.

That’s just one example. There are obviously countless others that lay bare the extent to which the GOP has abandoned everything it stands for in the interest of, well, to be honest, in the interest of I’m not even sure what at this point. The tax cuts are on the books. Gorsuch is on the bench. And on and on.

Republicans seem to have simply resigned themselves to the fact that if they want the support of the Roseanne base, they have to bow to Donald Trump, even if that means implicitly bowing to dictators like Vladimir Putin, shattering alliances with America’s staunchest allies in Europe, standing idly by while GOP mainstays like John McCain and Jeff Sessions are derided by a sitting president on Twitter and promoting candidates like Roy Moore.

[Caveat: I don’t like Jeff Sessions and I’m not at all a fan of John McCain’s foreign policy record, but that’s not the point – the point is that if you had told key Republican lawmakers four years ago that they would one day go silent as a reality TV show host called Sessions “mentally retarded” and accused John McCain of being a “coward”, they would have laughed you out of the room.]

As Axios’s Mike Allen wrote in the wake of the Helsinki summit, the reason “elected Republicans go so silent so quickly when they disagree so strongly with President Trump [is that] they fear it’s political suicide to speak up.”

On the point about conservatism leaning increasingly on religion, the bottom line is that I have no tolerance for it. I’ve broached this subject before in these pages, and I’ll do it again here. The Bible is a book of fairy tales. Period. As with all religions, Christianity at its best offers important lessons and should be respected to the extent it forms part of America’s cultural heritage. But that’s where it should stop. There is no place in public policy for Christianity, because making public policy based on fairy tales is the very definition of insane. Obviously, the historical Jesus was not a water-walking wizard and clearly, creationism is patent nonsense because you know, dinosaurs.

As “conservatism” drifts further and further away from entirely defensible secular ideas about free markets, limited government and fiscal discipline, on the way to becoming a religious cult centered around a man who lacks any semblance of a moral compass, I have less and less patience for it as a political ideology. “Religious personality cult” isn’t a political platform.

So that’s my admittedly tangential contribution to the Kavanaugh debate and it’s a roundabout way of introducing the following excerpts from a New York Times article published on Thursday:

As a White House lawyer in the Bush administration, Judge Brett Kavanaugh challenged the accuracy of deeming the Supreme Court’s landmark Roe v. Wade abortion rights decision to be “settled law of the land,” according to a secret email obtained by The New York Times.

The email, written in March 2003, is one of thousands of documents that a lawyer for President George W. Bush turned over to the Senate Judiciary Committee about the Supreme Court nominee but deemed “committee confidential,” meaning it could not be made public or discussed by Democrats in questioning him in hearings this week. It was among several an unknown person provided to The New York Times late Wednesday.

Judge Kavanaugh was considering a draft opinion piece that supporters of one of Mr. Bush’s conservative appeals court nominees hoped they could persuade anti-abortion women to submit under their names. It stated that “it is widely accepted by legal scholars across the board that Roe v. Wade and its progeny are the settled law of the land.”

Judge Kavanaugh proposed deleting that line, writing: “I am not sure that all legal scholars refer to Roe as the settled law of the land at the Supreme Court level since Court can always overrule its precedent, and three current Justices on the Court would do so.”

The full e-mail is embedded below. Readers undoubtedly have their own opinion on this, but the bottom line from a common sense perspective is that the government has no business telling women what they can and can’t do with their own bodies and putting someone on the Supreme Court who appears to doubt the precedent on this is a terrible idea.

This entire debate hinges on the purported “sanctity” of life, but the cold, hard reality of the situation is that when you strip away the religious overtones and pretensions to morality, the fact is, “sanctity” is an amorphous concept and the idea that appeals to it should justify curtailing a woman’s right to choose whether she wants to give birth is borderline psychotic.

Everybody with any shred of sense knows this intuitively, and while I understand that we all have to give a nod to decorum when discussing this subject in polite (or impolite), company, that’s something different than setting laws.

If you need this simplified, Kamala Harris is happy to help (and you can save me your Kamala Harris criticism because I don’t care):

In addition to the Roe e-mails, Sen. Cory Booker risked being ejected from the Senate on Thursday in the interest of publishing additional e-mails, including one thread called “racial profiling.” Here’s the clip of Booker’s coup:


He subsequently posted a dozen pages of confidential documents to Scribd and tweeted out a link to them. On the off chance that disappears, I’ve embedded those e-mails below as well.

You can draw your own conclusions here based on the evidence, but the bottom line, from my perspective, is that if conservatism is to avoid a fate of being relegated to the dustbin of history, conservatives need to i) move away from antiquated religious ideals based, ultimately, on a work of historical fiction, ii) stop being a personality cult for a would-be autocrat who ironically (considering conservatives’ purported dedication to Christian values), was described by a senior official in his own administration on Wednesday as being “amoral“, and iii) start making arguments based on secular ideas that are some semblance of defensible.

Kavanaugh Roe v. Wade

Booker Kavanaugh e-mails

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9 thoughts on “Brett Kavanaugh’s Position On Roe V. Wade Is Just As Indefensible As Modern Conservatism Itself

  1. I probably hate religion more than you do, but I don’t share your confidence that belief will retreat any time soon or that many believers will acknowledge the need for political secularism. For adherents, the fairy tale so thoroughly defines reality and identity that even slight threats to it provoke powerful cognitive defense mechanisms. Those mechanisms both sustain the fairy tale and help to foment the ideological rabidity we see in that group (racism and propaganda are also big players, which I know you know, but they’re woven together into a durable narrative in a way that wasn’t explicitly addressed here). And for adherents, our notion of secularism is antithetical to their beliefs; ethics and political theory are products not of rationalism but of divine decree, bestowed by holy revelation, and revelation provides no room for compromise. Theists cannot acknowledge even that they might be wrong, because to do so is to open the flood gates to their own doubts.

    At its core, this dispute is really ontological and epistemological rather than political, which I think you recognize, but there is a piece that I think you’re missing: some people simply aren’t equipped to deal with the existential ramifications of recognizing the fairy tale for what it is. For many, “Jesus loves me” is easier. And ultimately, even if they don’t truly believe it deep down, they still believe in believing it – which makes the need for cognitive defense mechanisms and stridently zealous behavior even stronger.

    Without religion, without racism, all that’s left of the American right is an inconsistent version of libertarian economics, which is more assailable on rational terms. As you say, modern conservatism is indefensible. But that doesn’t mean it’s going anywhere any time soon.

  2. As a conservative who absolutely hates modern conservatives, that has been left behind by the modern so called conservatives, I wholeheartedly disagree with (i) I can believe whatever the #$%^ I want to believe and if you do not like it tough @#$&ing &@#$. The second part of (i) chops your normally solid ethos off at the knees; who are you; a profit of the believe as i do God? However I do agree wholeheartedly with (ii), and (iii).

  3. As for Chris’s statements that reeks of stereotypical mumbo jumbo, and smell of elitist candyass-ism; seek out some independent thought for your own sustenance. Find some nourishment in a variety of forms it is a survival strategy after all.

      1. I attacked your statements not you. Afterwards I offered select real advice. Eat what is good and you will delight in the richest of fair. Or just keep consuming the same old unchanging drivel.

    1. Kavanaugh seems like the typical (it’s all perfectly legal type) modern cheating conservative, to me. I have not delved deeply into his legal background. If trump is for him; I am against him.

  4. The New York Times

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    Lee Salisbury | Stillwater Mn

    Do our Supreme Court Justices believe theology or objective science-based evidence should be the basis of legal decisions? Tragically, the conservative judges think life begins at conception. This is theology and not an objective science based conclusion. Fetal homicide laws now in 38 states are based on this fallacious theological presumption. The result: 100s of 100s of young minority girls and women are incarcerated after having a miscarriage or coerced into cesarian surgery because some ambitious prosecutor arrested them. Is this America or the Salem witch trials?

    Life begins when the baby takes its first breath. Further, Jesus never once voiced opposition to abortion. Abortion is legal and normal in Europe, Israel, Canada, and Japan. Pro-Life is a scam extraordinaire and judges throughout the land must be informed. Kavanaugh, Roberts, Alito, Thomas, Gorsuch must be admonished to protect church/state separation and the 1st Amendment, not tear it down with flaky decisions like Hobby Lobby and phony religious liberty decisions.

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