It would seem that every so often, for as long as he remains on the bench, it will once again become necessary to correct the record against leftist smears of Supreme Court Justice Brett Kavanaugh. This week has bestowed another such opportunity upon us, given the Court's oral arguments in the Dobbs abortion case. It appears likely that a majority of the justices are prepared to at least uphold Mississippi's abortion legislation (which is decidedly mainstream by international standards) as constitutional – if not further limit the legacy of Roe. Because Kavanaugh is among those who signaled a logical and constitutionally-grounded basis for doing so, rhetorical knives are being unsheathed. Left-wing Congresswoman Alexandria Ocasio-Cortez published a viral tweet in this vein, which was packed with misinformation:
Reminder that Brett Kavanaugh *still* remains credibly accused of sexual assault on multiple accounts w/ corroborated details & this year the FBI admitted it never fully investigated.
— Alexandria Ocasio-Cortez (@AOC) December 2, 2021
Yet the court is letting him decide on whether to legalize forced birth in the US. No recusal.
Let's set aside her use of the term "forced birth" (I'll quickly remind everyone that toppling or limiting Roe would not constitute an abortion "ban," but would allow more flexibility for states to set their abortion policies, ranging from more restrictions to this sort of pro-abortion radicalism in places like Oregon). Her assertions are wrong. Kavanaugh is not credibly accused of sexual assault by anyone. There are zero corroborated details. The FBI, beyond its multiple rounds of background checks performed over Kavanaugh's years of public service, did in fact look into the most high-profile of the totally-uncorroborated-to-debunked accusation leveled against him during his confirmation process. They found no evidence that Kavanaugh and his accuser ever even met because no evidence of this exists anywhere.
What they did find was that top allies of the accuser – whose own father doesn't believe her claims, which were rife with inconsistencies – pressured the accuser's friend and top "witness" to lie and change her story in such a way as to harm Kavanaugh's prospects for approval. That witness has since announced that based on everything she knows, she does not believe her friend's account, for which there is zero contemporaneous evidence whatsoever. The other "multiple accounts" AOC references have been thoroughly discredited. Another post-confirmation revelation (beyond the prominent accuser's top witness blowing the whistle on witness tampering, and disclaiming the accusation) was that same accuser's attorney who admitted abortion politics was a motivating factor behind her side's tactics:
The attorney who represented Christine Blasey Ford during Brett Kavanaugh's Supreme Court contentious confirmation hearings said in a speech earlier this year that Ford was motivated to come forward in part by a desire to tag Kavanaugh's reputation with an "asterisk" before he could start ruling on abortion-related cases. The high-powered progressive lawyer, Debra Katz, made the remarks at the University of Baltimore’s 11th Feminist Legal Theory Conference, entitled "Applied Feminism and #MeToo." Her comments were first quoted in the book "Search and Destroy: Inside the Campaign Against Brett Kavanaugh" by Ryan Lovelace, which Fox News has obtained...“He will always have an asterisk next to his name. When he takes a scalpel to Roe v. Wade, we will know who he is, we know his character, and we know what motivates him, and that is important...It is important that we know, and that is part of what motivated Christine.”
This gives the game away. The accuser "came forward" because, at least in part, she wanted to attach an "asterisk" to any future abortion-related jurisprudence from the justice. In other words, if Kavanaugh were to vote in favor of allowing states more leeway to set abortion policies, leftists would have a factually-unsupported but widely-known cudgel with which to hammer his credibility and his decision's legitimacy. This lawyer said so openly. And right on cue, an unscrupulous and demagogic Congresswoman is doing precisely what the accuser and her team intended, by their own admission. AOC wasn't finished, adding this tweet:
"Out of 9 justices, 3 were appointed by a man who tried to overthrow the US government (& elected via minority). Those 3 will decide whether the US will legalize forcing people to give birth against their will. Legitimacy requires consent of the governed. They are dismantling it"
Donald Trump was duly elected as President of the United States in 2016, was duly and lawfully inaugurated in 2017, and had the opportunity to nominate three new justices, based on vacancies (two deaths and a retirement). All three nominees were confirmed by the United States Senate, executing its "advice and consent" duties under the Constitution. Nothing about Trump's (indefensible, in my view) conduct after the 2020 election changes any of that – and if, say, Mike Pence had been president for that whole term, his SCOTUS nominees would have looked remarkably similar, if not identical. There is no "point" here, just more smears. Tellingly, AOC is effectively questioning the legitimacy of Trump's presidency while complaining about his actions to undermine the legitimacy of the next presidency. I'm fairly confident this irony is lost on her.
Also, the "elected via minority" aside is another piece of anti-institutions misdirection. Not only is it meaningless under our electoral system, I'm not sure it makes the case she thinks it does. Counting only the justices appointed by presidents who won a majority of the popular vote (they all won a majority of the electoral college, of course), there is still an apparent SCOTUS 3-2 majority in favor of upholding the Mississippi abortion law, based on the tenuous business of reading tea leaves from oral arguments. Justice Thomas was appointed by Bush 41, Justices Alito and Roberts were appointed by Bush 43 after he won a majority of the popular vote in 2004, and Justices Kagan and Sotomayor were placed on the Court by Obama. The other four justices were nominated by Clinton and Trump, neither of whom won a majority of the popular vote. Did AOC ever raise her invented majoritarian objection in order to undermine rulings from the late Justice Ginsburg, nominated by a president who won with just 43 percent of the popular vote? Of course not, which tells you everything you need to know about the sincerity and honesty of her argument.
I'll leave you with a reminder that it wasn't just Republicans (and her father, and her friend and top witness, and a career sex crimes prosecutor) who doubted the validity of Christine Blasey Ford's story about Brett Kavanaugh. This sentiment wasn't terribly uncommon among professional Democrats at the time, even as they all sang from the same songbook in public at the time, for both tribal and political reasons:
While former presidential candidate and current Sec. of Transportation Pete Buttigieg was publicly supportive of Christine Blasey Ford, his campaign advisor Lis Smith was calling her "looney tunes and the height of Me Too overreach" in a text exchange with Cuomo admin officials. https://t.co/yEBqB1hUfR pic.twitter.com/FkP83MWTAp
— Josefa Velásquez (@J__Velasquez) November 29, 2021
UPDATE - Progressive Washington Post opinion writer, whose views are published as news 'analysis,' reheats some of the majoritarian complaints that his fellow leftists are selectively employing to erode confidence in our institutions. His tendentious point, followed by some counterpoints:
Two-thirds of the Supreme Court was nominated by presidents who won the popular vote. One third was nominated by a president who wasn't — and confirmed by senators representing less than half the country. https://t.co/yzIFTdoaqu
— Philip Bump (@pbump) December 2, 2021
Roe was written by Harry Blackmun, who was also appointed by a president elected with 43% of the vote. https://t.co/B7YBVPphcz
— Dan McLaughlin (@baseballcrank) December 2, 2021
The degree to which progressives like Justices Sotomayor and Breyer, AOC and Bump have relied on legitimacy attacks in this particular legal battle underscores the weakness of their substantive arguments.
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