John Paul Stevens, RIP

Former Supreme Court Justice John Paul Stevens died Tuesday at the age of 99, and although he’d only been retired for nine years he seemed a relic of a bygone era of American jurisprudence.

Stevens was another one of those many Republican-appointed Justices who turned out to be more liberal than most Republicans would prefer, but we expect that even the historians on the right will treat him respectfully. His 35 years on the Supreme Court made him the second longest-serving Justice, and during that long tenure he cast votes and wrote decisions and dissents that offended both sides of the political spectrum but always impressed almost everyone with their clear logic and factual underpinnings. He was also known for his bow ties and upbeat disposition, and during the summer we spent as teenaged messengers for the Supreme Court we noticed he was unfailingly nice to the help.

He also had an interesting 99 years of life, which began in his beloved Chicago in 1920. His father was a wealthy businessman and his mother was an English teacher, but the Great Depression cost his family its famously opulent downtown Chicago hotel, and his father was convicted of embezzlement in his attempts to save, although the conviction was later overturned by the Illinois Supreme Court. While his father worked at middle class job managing someone else’s hotel Stevens attended the University of Chicago, where he majored in English and edited the school newspaper and graduated in 1941 with the highest honors. Within a year he was serving in the Navy, stationed in Pearl Harbor and assigned to a unit of brainiacs charged with breaking Japanese codes, and at the end of the war he returned to civilian life with a Bronze Star.

Two older brothers were practicing lawyers, and Stevens’ family encouraged him to follow their path. He won admission to Northwestern University’s prestigious law school, where the brand-new G.I. Bill paid his tuition, and he was editor in chief of the law review and graduated first in his class with the highest grade point average in the school’s history. A Supreme Court clerkship to President Franklin Roosevelt’s last appointee followed, and then 22 years years of a lucrative law practice mostly devoted to defending big businesses against anti-trust suits and regulations. With a hard-earned reputation for integrity and such impeccably Republican credentials he was a natural choice by President Richard Nixon to the United States Court of Appeals for the Seventh Circuit, based in Chicago, and in 1975 President Gerald Ford appointed him the Supreme Court.

The appointment was confirmed in the Senate by a vote of 98 to 0, which isn’t likely to ever happen again in our lifetimes, even with an appointee of Stevens’ undeniable qualifications, He was also the last Supreme Court appointee whose confirmation hearings weren’t televised, the last one who wasn’t questioned about his stand on the Roe v Wade decision that made first trimester abortions a constitutional right, and so far as we can tell he was the last Justice seated before the process became such a bloody political battlefield.

At first Stevens was pretty much what you’d expected from a Republican midwesterner with an anti-regulation and anti-anti-trust background, and joined with other Republican appointees in a narrow majority in the Bakke v University of Texas case that restricted but did not outright ban race-based admissions policies at the public universities, but over time he more often found himself siding with the more liberal Justices on matters ranging from the death penalty to abortion to the Bill of Right’s binding authority on the states to sex discrimination to even the authority of regulatory agencies. On each occasion we and the rest of the Republican right felt betrayed, but Stevens always had a better-educated and more clearly stated reason for his views, and by now most of his critics have mostly forgotten what all the hubbub was about, and in retrospect he think his views on the Bill of Rights applying to the states and not executing the mentally retarded were quite right. We still don’t like his vote on Chevron v Natural Resources Defense Council, which instructed lower courts to generally defer to a regulatory agency’s interpretation of federal statutes, but we wouldn’t have wanted to debate him about it in front of an audience.

Stevens stuck around long enough to annoy the libertarian left with a vote against the decision to protect flag-burning as free speeches and a vote for the decision that the federal government’s marijuana prohibition superseded the state’s right of California to to legalize it. He also annoyed the libertarian right by joining the majority Kelo v. City of New London that broadly extended local governments’ power of eminent domain, which we still hate, although once again we’d decline to debate him about it, and we note that the former real estate mogul and current Republican president is on the record saying he “loves” the Kelo decision.

As far as the purely partisan Republicans are concerned, perhaps his greatest betrayals were his dissenting opinion in the Bush v Gore case that resulted in President George W. Bush, and his resignation at the relatively tender age of 90 during the administration of Democratic President Barack Obama. That resulted in Justice Elena Kagan, who is further to the left than Stevens and far less grounded in all that old-fashioned facts and logic and the law stuff.

President Donald Trump has already appointed two Supreme Court Justices, both confirmed on strictly party lines, and he might yet get a third even without a second term. He left both choices to the conservative think-tank The Heritage Foundation and the conservative lawyer’s group The Federalist Society, and there’s little worry that either of Trump’s picks will “evolve” the way that the picks of Republican Presidents Eisenhower and Nixon and Ford and Reagan and George H.W. Bush and George W. Bush did. Our hope is that they remain true to their originalist and by-the-facts-and-letter-of-the-law beliefs, and are more loyal to that than they are to Trump when those congressional subpoenas the Trump administration is defying eventually reach the Supreme Court.

If the newest Justices are as smart and principled and humane as Justice John Paul Stevens, we’ll settle for that.

— Bud Norman

Abortion Back in the News, Darn It

The abortion issue is lately back in the news, and we admit we hate to see it there. Even after so many decades of noisome debate we don’t really know where we stand on the matter, and we notice that the more cocksurely opinionated people on both sides are further apart than ever, and at this point we figure that it will be left to far future generations of as-yet unborn babies to resolve it.

Emboldened by President Donald Trump’s last two appointments to the Supreme Court, the Alabama legislature has passed and the Alabama governor has signed a law that would punish any doctor who preformed an abortion at any stage of a pregnancy with a life sentence except in the case where the life of the mother’s life was threatened, and makes no exception for cases of rape or incest. The law is plainly unconstitutional according to the 1972 Roe v Wade decision, which has been a source of constant contention ever since, but Alabama is betting that a couple of Trump appointees on the Supreme Court will be able to overturn that hated decision.

Meanwhile, the other side seems to be digging into an equally extreme position. Self-described socialist Sen. Bernie Sanders’ state of Vermont has recently passed and signed into law that guarantees a right to abortion rights up to the moment of childbirth, and arguably makes allowances for infanticide, and although the rest of the Democratic party hasn’t gone quite that far it’s still far out on the pro-choice side of the debate.

According to all the opinion polls most of the American public is somewhere in the middle about all this, and as much as we hate to admit we’re common so are we. Our beloved hometown of Wichita was the epicenter of the abortion debate back in the ’90s, when we were working for the local newspaper and local abortionist Dr. George Tiller was performing very early and very late-term abortions, and a very angry anti-abortion movement in this very Christian town caused traffic jams and mass arrests and public nuisances by effectively shutting the practice down for a short while. We’ve never had a serious pregnancy scare — knock on wood — so both our pro-choice and pro-life friends can reasonably claim we have no standing to opine.

They’re probably both right, of course, but we’ll nonetheless stand by our centrist position. We’ve been fortunate to know some very fine women who have shared very personal stories about their first trimester abortions, and our Christin faith tells us not to stand in judgment of them. No matter how it was conceived a fetus is a potential sacred human life, on the other hand, and certainly by the time it could survive outside the womb it is entitled to the full protection of the law.

We’d like to think that America’s political institutions and judicial systems will sort it all out, but we doubt it. The Republicans are currently led by Trump, a thrice-married and oft-bankrupt Casino-and-strip-club mogul who has publicly bragged about his extra-marital love life, and was a staunch pro-choice supporter until he decided to run for the Republican nomination. Meanwhile, the Democrats seem likely to nominate someone who’s openly anti-life. and we hope that’s also not a winning stance.

The matter is more likely to be settled in the courts, but we don’t holda out hope it will end there. Even if those two Trump appointees overturn the Roe v Wade that guaranteed a right to first trimester abortions they won’t dare declare a constitutional right to life from the moment of conception and ban abortions altogether, and if they did it would result in one hell of an uproar. The very best the pro-life Republicans can hope for is that the matter is returned to the states, with Vermont going one way and Alabama another, and all the rest of the states arguing about it endlessly, with at least half of the states sending its citizens to the next state for an abortion, and the Republican Party probably coming out on the losing end.

— Bud Norman

Kavanaugh’s Confirmation is Further Complicated

Judge Brett Kavanaugh’s nomination to the Supreme Court was already in jeopardy after a woman came forward by name to accuse him of a sexual assault when he was a high schooler, and might be in further jeopardy yet now that another woman has come forward by name to accuse of him of indecent exposure while he was a college student. It’s all very complicated, though, and Kavanaugh might well be confirmed despite it all, but doubts will likely linger now matter how it all turns out.

After 37 years there’s no definitive corroborating evidence for California psychology professor Christine Blasey Ford’s allegation that Kavanaugh held a hand over her mouth and nose as he pinned her against a bed and attempted to forcibly undress her during an drunken teenaged party near his elite prep school, but neither can he cite any definitive exculpatory evidence. He’s got plenty of credible character witnesses that vouch for his excellent character, but she’s got a similar number of friends who can’t believe that she’d sacrifice a quiet life in a picturesque college town and her own fine reputation and start getting death threats and talk radio vilification just to tell such a lie. After much news and difficult negotiations she’s scheduled to tell her story under oath to the Senate judiciary committee on Thursday, which will probably get bigger television ratings than the last episode of “M*A*S*H,” and he’ll give his account afterwards, and we expect most viewers will judge whom to believe to based entirely on their prejudgements.

The newer allegation by a Colorado resident named Deborah Ramirez that Kavanaugh exposed his penis and forced her to touch it during a drunken college party near Yale University will likely be similarly prejudged by the general public. Ramirez makes the allegation in an article in The New Yorker penned by Ronan Farrow, whose meticulous reporting on sexual misconduct stories has lately earned him a national reputation and brought down several famous entertainment and political figures, but she’s already being doubted by such equally respectable publications as The Washington Post. She freely admits she was quite drunk when the incident allegedly occurred, and that she only came forward at the urging of various reporters, and the Post’s sex-crime prosecutor sources cite other problems. On the other hand, that Farrow fellow claims to have supporting sources and has been libel-proof so far, and it is yet another woman coming forward by name to allege that Kavanaugh was less than a perfect gentleman in his youth and is lying about it in his maturity.

Kavanaugh’s confirmation was plenty complicated even before any of this popped up, given that he was nominated by the very divisive President Donald Trump, and has a record of law review articles stating that a sitting president cannot be indicted or subpoenaed or even investigated, and is reasonably suspected of being the potential decisive vote to overturn Roe v Wade and other Supreme Court precedents dear to liberal hearts.

We don’t care much about Roe v Wade, as we figure most of the state legislatures will eventually wind up retaining the status quo after yet another prolonged and acrimonious debate about abortion, and we generally agree with Kavanaugh’s originalist philosophy of interpreting the constitution, but we do worry about his views regarding what presidents should be able to get away with, and we haven’t yet reached any judgment about his behavior as a high school and college student and what he’s saying about it today. We’ll give him a fair hearing, as we know that women do sometimes make false accusations against men, but we’ll give his accusers the same fair hearing, as we know that it’s far more common for men to misbehave than it is for women to lie about it.

The decision about whether to confirm Kavanaugh’s nomination will probably come down to a couple of women Republican Senators who are pro-choice, along with a couple of male Republican Senators who have been known to buck the Trumpian line, and maybe a couple of red state Democratic Senators who are probably thinking they can now get away with a “no” vote on Kavanaugh. At this point we’ll let them decide the matter, and figure that no matter how it turns out doubts will linger.

— Bud Norman

The Brawl about Kavanaugh

The confirmation hearings for Supreme Court nominee Brett Kavanaugh got off a to an unruly start on Tuesday. Judiciary committee chairman Sen. Chuck of Louisiana was just 13 words into his opening statement when he was interrupted on a point of order by California Sen. Kamala Harris, who request the hearing be postponed was met by loud cheers from an unruly group of Code Pink protestors, with Grassley ignoring them as he tapped his gavel and continued saying something or another.

Given what’s at stake for both sides of our increasingly angry political discourse, and who’s at work in the judiciary committee, we don’t expect things will get any friendlier. It’s most likely the whole hubbub will wind up with Kavanaugh getting confirmed by the committee’s Republican majority and then by the Republican majority in the full Senate, but the Democrats aren’t going to make it easy.

The Democrats can’t deny that Kavanaugh has all the Ivy League credentials and prestigious clerkships and the long experience of legal work in the executive branch and on the federal bench, and have to admit he seems a nice enough guy, but they don’t like the way he’s almost certain to vote several issues dear to their hearts. At this point they’re not holding out any hope that such hated-by-the-left decisions as Citizens United and Heller will be overturned anytime soon, but they can still wish for a Justice who would allow a few of the campaign finance regulations that Citizens United did away with and perhaps chip away at the individual right to gun ownership established by Heller. More importantly they have good reason to believe that Kavanaugh might be the fifth vote needed to overturn such beloved-by-the-left decisions as Roe v. Wade, which legalized most abortions, and Obergfell, which established a right  same-sex marriages, as well as all sorts of cases involving labor unions and environmental laws and other matters that all too often wound up being settled in the Supreme Court.

Although they’re out-voted until at least December, the Democrats do have a few things going for them. Opinion polls show that many of the ways Kavanaugh is almost certain to vote are widely unpopular with the general public, and only a slim plurality of 41 percent wants to see him confirmed. The Roe v Wade decision is lately enjoying a 63 percent approval rating, and although the Republican party has long vowed to overturn it some of the members are probably skittish about actually doing so. Kavanaugh was also nominated by President Donald Trump, whose latest poll numbers are back down in the high 30s, which provides the Democrats with a possibly persuasive talking point.

Between the “Russia thing” and the hush money payments to a porn star and a Playboy playmate and a suspicious family charitable foundation and the many unprecedented interactions between his still wholly-owned businesses the government Trump runs, Trump has more than the usual president’s share of legal woes. There’s a good chance that some or even all of it will wind up before the Supreme Court, and while Kavanaugh was working as a lawyer for President George W. Bush he had a very expansive view of presidential power, which shouldn’t give only Democrats pause. Trump has lately “tweeted” his view that the Justice Department shouldn’t indict popular Republicans, and Kavanaugh did once write that a sitting president cannot legally be investigated by anyone in the government, so we’ll expect some pointed questions in the coming days and hope for some pretty persuasive answers.

The Republicans also have some things going in their favor besides their slim Senate majority. Kavanaugh does indeed have the impeccable credentials, he comes across as a nicer guy than any of those unruly Code Pink types that the capitol cops kept hauling out of the room, and in most cases there’s sound legal reasoning behind even the decisions that his critics hate most. Once upon a time in America such credentials would win a quick and bipartisan decision, but that was long before Trump came along, and he hasn’t done much to restore civility.

Sound legal reasoning is too complicated for most busy Americans, and it’s easier to take sides on an issue based on how you feel about abortion or same sex marriage or owning a gun than to consider the underlying constitutional issues. For the politicians who are on the committee and will be starring on television for the rest of the week, it’s far easier to pander to those prejudged opinions. Among the players in this week long reality are at least two Democrats and two Republicans who are potential contenders for their party’s presidential nominations, and at least three are clearly eager to get high ratings.

The aforementioned Sen. Harris of California and New Jersey Sen. Corey Booker are clearly near the front of the line for the next Democratic nomination, and both did their best to take advantage of the airtime. Harris’ early point of order to call for a postponement was based on the legitimate gripe that Kavanaugh’s White House handlers had provided 42,000 pages of long-requested documents just hours before the hearings began, and we’re sure those Code Pink punks weren’t the only Democrats who appreciated her futile effort. Her opening statement was a familiar but fairly well-stated litany of all the instinctive reasons liberals will hate the way Kavanaugh is almost certain vote on so many issues dear to liberal hearts, and she well made the good points about what might happen if Trump winds up as a litigant before the Supreme Court. Booker’s turn at the cameras and microphones was even more conspicuously a campaign stump speech, invoking the holy liberal trinity of race, class and gender, and the former mayor of Newark even put in a pitch for the beleaguered farmers out here on the prairie states.

Both were a bit too over-the-top with the righteous liberal outrage shtick to our old-fashioned ears, but we can see them playing well with our more righteously outraged liberal friends.

One of the Republicans who valiantly rode to Kavanaugh’s defense was Texas Sen. Ted Cruz, and we think that the former national collegiate debate champion handled himself rather well. Cruz came in second in the latest Republican primary race to Trump, and having ended a bitter feud with his former rival he might be next in line in ’24, or even ’20 is those don’t turn out so well for Trump, but first he has to survive a surprisingly close reelection run against a young and telegenic and well-funded Democrat named Rep. Beto O’Rourke, so of course he relished the air time. Despite his aw-shucks Texas persona Cruz is a Harvard Law graduate, and couldn’t help complimenting Kavanaugh’s impeccable Ivy League credentials “even though you did go to Yale,” but then proceeded to make a more persuasive case for Trump’s nominee than Trump ever could, and even fit a clear explanation of originalist legal theory into his time.

Cruz is clearly eager to get Trump’s nominee confirmed, and Trump has lately “tweeted” that he’s seeking the biggest stadium in Texas to campaign for his loyal Senate soldier, but all the Democratic money is putting up billboards all over the state remind voters of earlier Trump “tweets” about “Lyin’ Ted” and his ugly wife and how Cruz’ father might have been in on the Kennedy assassination and how the Senator was “all talk and no action.” Next we expect all of the Cruz quotes about Trump being a narcissist and a pathological liar and intellectually and temperamentally and morally unfit for office, and although we expect Cruz to eventually win reelection in reliably Republican Texas we’re not surprised that the polls have it close.

If Trump doesn’t even make it to the ’20 race, which does not seem at all outside the realm of possibility, the young and telegenic Nebraska Sen. Ben Sasse will be well positioned to win the Republican nomination, and we thought he had the best turn at the camera. He rightly decried that Supreme Court confirmation hearings have been partisan brawls since at least President Ronald Reagan’s failed nomination of Robert Bork way back when we were young, and yearned for the “elegant and fair” process that confirmed justices who cases based on facts and law. Sasse made the case that Kavanaugh’s resume and work record suggest he will rule in the same time-honored way, and defended nice enough family guy’s character against the liberal slurs that are sure to come, and pleaded with his colleagues for a civil deliberation.

If Trump doesn’t make it to the ’20 election it will be because of the “Russia thing” or various shady business dealings or the Constitutions emolument clause or the 25th Amendment, or any number of things that might derive from that narcissism and pathological lying and general unfitness for office that Cruz used to talk about, and not because of his tax and deregulation policies of and the judicial policies that all the liberals hate. Sasse is the rare Republican who will openly criticize Trump for the crude disrespect for well-established traditions and the brazen corruption and crazy “tweets,” and as a farm state Senator he’s none too pleased with Trump’s trade wars, but on every traditional Republican thing Trump wants to do he’s been a reliable vote. As we say, this will leave him well positioned in a post-Trump race in ’20, if that should come to pass, which is not outside the realm of possibility.

Kavanaugh finally got an opening statement of his own, and we thought he did well enough. He made the familiar case for his originalist theory of legal interpretation, talked about his dad some and his mom a lot more, and talked about coaching his daughter’s basketball team, and how grateful he is to all the coaches had along the way. He noted the disproportionate-to-the-population number of law clerks who were female or of some ethnic minority, which took some of the wind out of the sails that both Harris and Booker had raised, and didn’t seem at all the type to poison the air or force back alley abortions or any of the other things he stands accused of.

All in all it was reassuringly bland, which we much prefer to the more common righteously outraged politics on both the left and the right these days, so unless the Democrats come up with some convincing evidence that Kavanaugh was nominated to rig the system in some upcoming Trump-related case, which is not entirely outside the realm of possibility, we’ll take that Sasse fellow’s word for it and give him the benefit of the doubt.

— Bud Norman

For Kavanaugh, Because Why Not?

President Donald Trump has nominated federal appellate judge Brett Kavanaugh to replace retiring Justice Anthony Kennedy on the Supreme Court, which is a quite fine pick as far we’re concerned. That’s just our opinion, though, and we expect the rest of the country’s hearted arguments about it will last long after his inevitable confirmation.

Anyone that Trump or even a more normal Republican president might have nominated would have met outraged opposition from the left, of course, but in these strange days a certain portion of the right is also disappointed by the choice. Kavanaugh has a long record on the federal bench of deciding cases based on the objective facts and the most plain reading of the constitution that conservatives such as ourselves have always insisted on, but he only got the chance because he appointed to the federal bench by Republican President George W. Bush after exemplary service in the Bush Justice Department, and these days that certain majority portion of the Republican right has as much disdain for the Republican party prior to Trump that they have for the Democratic left.

There were reportedly even more provocative potential Supreme Court nominees among the semi-finalists and finalists in the reality-show roll-out of Kavanaugh’s appointment, but the left will surely still muster its full outrage about the appointment. The left has good reason to fear the Roe v. Wade decision legalizing will be overturned, the Obergefell v. Hodges decision legalizing same-sex marriage will be undermined by conscience exemptions for Christian baker and wedding photographers, and that the District of Columbia v. Heller decision affirming an individual’s right to keep and bear arms will be bolstered, and that Citizens United and Gore v. Bush and all the other decisions that so outraged leftist sensibilities will never be overturned.

None of which bothers us much. We rather like that Kavanaugh has a Bush pedigree, as we much preferred that era of the Republican party, and even the most “burn it down” sort of conservatives have to admit that any Supreme Court appointee  with any credible credentials that Trump might choose got his or her shot because of that hated pre-Trump Republican establishment. As for all those complaints from the left, we’d offer the same rebuttals on behalf of Trump’s nominee as we would for any old nominee any old Republican president might have picked.

Harvard’s notoriously contrarian Law Professor Alan Dershowitz hA lately a Trump apologist about the “Russia thing” but is now alarmed that the Supreme Court will find a constitutional right to life at the moment of conception and thus ban all abortions, as that is indeed the logical conclusion of right-to-life absolutism, and although much of the left is sounding the same alarms we think it’s overwrought. The far more likely outcome is that the Supreme Court will overturn Roe v. Wade, and thus return America to the day before’s law that each of the 50 states could regulate abortion as they chose, and although that that promises and insufferable debate and poses a damned complicated moral issue it’s a clear-cut political victory for the left.

The occasional same-sex marriage will likely continue to happen even with Kavanaugh on the Supreme Court, and with Kavanaugh on the Supreme Court ourt it will be more likely that the occasional bakers and photographers and others will decline to participate, but in both cases we can live with that. We somehow have a rather fancy handgun hidden somewhere in our home, and our plain reading of the Second Amemdment’s not-all-clear language assures us we have every right to do so, but our liberal friends can be reassured we have no intention to shoot them. As far as our ink-stained First Amendment sensibilities are concerned the Citizens United case was about the government’ attempts at prior restraint of a documentary critical of that awful Hillary Clinton woman, and even if there was corporate money involved we thought it a sound decision. That Gore v. Bush decision seemed sound to us at the time and still does, no matter how the current Republican party might hate anything with the word “Bush” in it, but by now even our most bitter liberal friends are largely over it and even pining for the good of days of Bush.

Long before Trump signed on with the Republican party we’d assured our liberal friends that a strict adherence to the Constitution doesn’t threaten liberal values, as the Constitution is still, even by modern standards, a radically liberal document. We like to to point the example of Justice Hugo Black, the ex-Ku Klux Klan leader that iconic Democratic President Franklin Roosevelt appointed in order to appease the white southern racists who were then a key component of the Democratic coalition, and who went on to be a hero of the Supreme Court’s civil rights revolution because yeah, that 14th amendment’s plain language made clear that even separate-but-equal discrimination wasn’t constitutionally permissible, even if the unrepentant racist still thought that it was a damned fool idea.

Even so, we don’t trust anybody these days. We note that Kavanaugh was first appointed by a Bush, and was long opposed by the left, and is now likely elevated to the Supreme Court by the newly reconfigured Trump Republican party, and we have to admit that until the last few days we’d never heard of Brett Kavanaugh. On the whole, though, we’ll pays our money and takes our chances on the guy.

Maybe it’s the impressive Ivy League academic records or the prestigious Bush-era appointments or the impeccable streak of rulings based on the the facts and the law, but Kavanaugh strikes us as the kind of guy who’d be reluctant to overturn that long-ago United States v. Nixon decision that compelled a president to cooperate with a investigation into his various alleged wrongdoings. During his acceptance speech on live television Kavanaugh had some embarrassingly fulsome praise for Trump’a deep and abiding respect for the judiciary — even prior highly-praised-by-the-right appointment Justice Neil Gorsuch admitted he was embarrassed by Trump’s frequent “tweeted” attacks on the judiciary — but once he no longer has to go along to get along we hold out hope a Justice Kavanaugh will confront Trump’s inevitable upcoming legal battles strictly according to the facts and a plain reading of the Constitution.

— Bud Norman

The Abortion Debate Resumes

Even after all the decades since the Roe v. Wade decision was handed down by the Supreme Court the abortion debate still rages, but we’ve noticed in recent years that it rarely shows up on the front pages of the newspapers or the top of the cable and network news broadcasts. The upcoming battle over the appointment and confirmation of a replacement for retiring Supreme Justice Anthony Kennedy is bringing the long-simmering battle back to the figurative front-burner of American politics, however, and we’re already dreading what will ensue.

Here in our usually placid hometown of Wichita, Kansas, the abortion debate has always been especially acrimonious. The very interesting mother of a very interesting high school friend of ours was picketing on the sidewalks outside a local Wesleyan hospital even before the Roe v. Wade decision was passed, and the abortion debate has played an outsized role in local and state politics ever since.

Although Wichita and Kansas are unusually church-going and conservative places by modern secular standards, the state somehow wound up with the most permissive abortion laws outside of China and its one-child policy, and the city was long home to one of less than a handful of doctors in the entire world willing to perform the third-trimester abortions that even the Roe v. Wade decision allowed states to restrict, which our many years of Republican legislatures and Republican governors somehow never got around to restricting. The massive gulf between public opinion and public policy enflamed passions on both sides even more than in the rest of the country, and things got unpleasantly heated around here.

Back in ’91 the radical anti-abortion group Operation Rescue came to town for a “Summer of Mercy” that involved physically blocking access to the city’s three abortion clinics, all owned by the doctor who performed those internationally controversial third-trimester abortions, and we still remember it as the hottest summer ever around here, notwithstanding the higher temperatures of other summers. Hundreds of church-going and baby-having and lawn-mowing upright citizens willingly went to jail the cause, hundreds of other church-going and baby-having and lawn-mowing upright citizens stopped talking to their neighbors and longtime friends as a result, and we know of at least one marriage because of all the acrimony, and countless Wichitans with no strong feelings about abortion were inconvenienced by the traffic tie-ups next to the main clinic along the crucial Kellogg Avenue freeway on their way home from work.

We were reporting for the local newspaper at the time, which still had a wide readership at the time, and despite our best efforts to be objective and factual about what was going on the sidewalks of Wichita we and our equally objective and factual colleagues wound up incurring the wrath of people on both sides of the debate. Journalists from around the country and the entire world wound up sharing a beer with us at a tavern next door do the clinic on Central Avenue, as the protests brought unexpected attention to Wichita from pretty much everywhere, and they all had the same complaints about how their determinedly objective and factual accounts were received.

In the end, though, Operation Rescue’s radical stand against abortion and its civil disobedience tactics got the worst of it both here and around the world. The most enthusiastic supporters of abortion rights were predictably outraged, the more mainstream anti-abortion groups distanced themselves from Operation Rescue’s civil disobedience tactics, and Congress wound up passing and President Bill Clinton wound up signing some tough laws about access to abortion clinics that those church-going and baby-having and lawn-mowing upright Wichitans did not dare defy. Despite Republican legislatures and Republican governors, that internationally controversial Wichita abortionist continued to perform third-trimester abortions next to Kellogg Avenue in Wichita.

The anti-abortion forces did succeed in making opposition to the practice a litmus test for any Republican candidate seeking any sort of office, no matter how he strident he might be about a tax cuts or deregulation or any other Republican position, but despite Republican majorities in the legislature and Republican governors they somehow never did succeed in imposing the constitutionally permissible ban on third-trimester abortions. That matter was instead settled when a radicalized anti-abortion activist came down from Kansas City and shot Dr. George Tiller in the head during a worship service on a sunny Sunday morning in ’09 at a lovely Lutheran church way over on East 13th Street.

All of the mainstream anti-abortion groups denounced the assassination, and all of the world press we met while covering the trial on a freelance basis seemed slightly disappointed that a church-going and conservative Wichita jury found the assassin guilty after an hour’s deliberation after a trial where the defendant freely admitted his guilt, and since then there have been no third-trimester abortions performed in Wichita. State law somehow still allows any doctor to do so, but no one has dared to do so, and since then Kansas has been more involved in debates about tax cuts and voting regulations and trade policies and other desultory matters.

Since then a majority of Ireland has voted to repeal that very Catholic country’s strict anti-abortion laws, and Mississippi and a couple of other proudly Protestant southern states have passed restrictive anti-abortion laws that press against the limits of the Roe v. Wade decision, but here and around the world the the abortion debate has gotten less ink and airtime than those desultory debates about tax rates and trade policies and the “Russia thing” and the latest outages about President Donald Trump and all the rest of it. As maddening as it all is, we preferred it to the abortion debate.

Justice Kennedy’s retirement and Trump’s power to appoint his replacement brings all the abortion issue acrimony back to the front burner of American politics, though, and there’s nothing we can do about that. Back when Trump was a Democrat he was staunchly in favor of abortion rights, even unto that third trimester, and our guess is that the first abortion bills that passed Trump’s desk were quickly paid, but ever since he decided to run for president as a Republican he’s been even more stridently anti-abortion than even the mainstream anti-abortion groups, and by now one side is hopeful and the other side is fearful that Roe v. Wade will be overturned. The contrarian Harvard Law professor Alan Dershowitz is somehow a conservative hero for defending Trump in the “Russia thing,” but he’s worried that five-to-four Trump majority on the Supreme Court will result in an opinion banning all abortions on the grounds of a constitutional right to life at the moment of conception, and the better bet is that Trump’s pick will result in all 50 states arguing about abortion without any constitutional restraints.

We don’t see that ending well for anybody, and especially the Republican party. To this day we’re too objective and factual to declare any moral stand on the abortion issue, although we’re still guilt-ridden about the third-trimester abortions of viable fetuses that occurred in our hometown and the cold-blooded  murder of the doctor who performed them, but we can’t see how it’s a winning play for the proudly adulterous Trump or his family values Republican party. Our long and desultory experience of the abortion debate around here tells us that nobody is ever persuaded by any argument the other side might make, that the debate is inevitably murderous no matter which way you look at it, and in the end most of America is just hoping for an easy drive home from work.

— Bud Norman

Kennedy Hands Trump a Final Win

Supreme Court Justice Anthony Kennedy announced his retirement on Wednesday, which is good news for President Donald Trump. No matter how many porn stars Trump pays or longstanding allies and trading partners he needlessly alienates or essential institutions he seeks to undermine, his die-hard defenders can always make the strong argument to pre-Trump conservatives such as ourselves that we’re better of with him making Supreme Court picks rather than that awful Hillary Clinton woman.

Trump got his first chance to pick a Justice because Republican Senate majority leader Sen. Mitch McConnell — now widely reviled by the Trump-ian party as a squishy establishment type — ruthlessly held the seat open through the last year of President Barack Obama’s second term following the death of reliably conservative Justice Antonin Scalia, and Trump’s choice of the equally rock-ribbed Justice Neil Gorsuch further endeared him to his loyal supporters and earned begrudging praise from his party’s last skeptics. Kennedy’s retirement gives Trump an opportunity to replace him with someone even more rock-ribbedly conservative, and although we’re sure he’d appoint his abortion-loving appellate judge sister or idiot-sin-law to the seat if he thought he could get away with it, we’re also sure he’s shrewd enough that he’ll once again let the Heritage Foundation choose someone the fans will love and the conservative skeptics will begrudgingly respect and the Democrats can’t come up with any persuasive beyond-the-pale arguments about.

Kennedy was appointed to the court by President Ronald Reagan and confirmed with unanimous Republican support and several Democratic votes in the Senate, and he was not a judicial activist type who thought that whatever the consensus of liberal opinion believed was constitutional, but neither was he a reliably conservative vote in controversial cases. He acquired a reputation as the rare “swing vote” on the Supreme Court, and for whatever idiosyncratic reasons he frequently wound up on the winning side of many five-to-four decisions that wound up outraging the left some of the time and the right some of the time. In his final session he provided Trump with some much-needed five-to-four wins on the travel ban and a California case involving the free speech rights of anti-abortion advocates and another matter about the power of public unions, but his replacement will likely provide both the Trump-ian and pre-Trump conservatives with even more five-to-four wins over the coming decades.

There’s already concern on the left that the Supreme Court might even undo the 1973 Roe v. Wade decision that found a right somewhere in the penumbra of the Constitution for abortion in the first trimester and exceedingly complicated cases afterwards, which is well past the panic by point even by the left’s panicky standards, but they don’t have much power to stop it. They’ll put up a good fight in the Senate confirmation process, and do whatever they can with the filibuster rules the Republicans used to rely on in their days on the political desert, and make a not-quite-convincig argument that because Obama’s appointment had to await the next presidential election Trump’s pick should await the next mid-term election, but they’ll wind up with Trump winning a more conservative Supreme Court for a long while.

As much as we hate to see it redound to Trump’s political benefit, that’s fine with us. We’ve always believed the Constitution says what the words written in it say, and not whatever the current consensus of liberal opinion is, and we have to admit we do shudder to think of the nominees that awful Clinton woman would have chosen. If Trump’s picks prove the strict constructionists the Heritage Foundation claims they are they’ll probably uphold a special counsel subpoena of the president, and even if the Court does undo Roe v. Wade it will just set off 50 state legislative battles and countless street brawls which the rather recent and obviously insincere pro-life convert Trump will mostly lose.

No matter how stellar a pick the Heritage Foundation comes up with, however, we’ll still be infuriated by almost everything else Trump is doing.

— Bud Norman

The Supreme Court and the Resulting Squabbles

So far as we can tell from the initial news reports, President Donald Trump’s Supreme Court nominee Neil Gorsuch seems like our kind of guy. By all accounts, including those of The Washington Post and The New York Times and other unenthused media, federal appeals judge Gorsuch is a staunch originalist who insists on a plain sense reading of the Constitution and has a personal reputation that has thus far been unblemished by decades in public life, which is basically what we’re looking for in a Supreme Court Justice. We expect that the Democrats will come up with something, and that quite a fuss about it will ensue in the confirmation process, but at this point we are cautiously hopeful that he will take his seat on the court and do a fine job there.

It will be interesting to see what the Democrats will come up with. The initial reports from even the most unenthused media are for now scandal-free, they all acknowledge his very diplomatic stye of adjudicating and exquisitely careful use of the English language, and he’s a rather handsome and reasonable seeming fellow who doesn’t sport that creepy facial hair or menacing scowl that made President Reagan’s unconfirmed nominee Judge Robert Bork so easy to “bork.” The opposition will therefore probably focus on his staunch originalism and its crazy notions about interpreting the Constitution according to a plain sense of reading of its text, rather than finding some convoluted reason that the Constitution insists on whatever the left’s favored position of the moment might be, but after the last election they’re hard pressed to make the argument.

For longer than Gorsuch has been in public life we’ve tried to reassure our liberal friends that a truly conservative Supreme Court Justice should not trouble them, as he is by definition committed to upholding both the letter and spirt of a radically liberal Constitution. We like to cite the example of the great Justice Hugo Black, the former Ku Klux Klan bigwig appointed by President Franklin Roosevelt to appease the substantial southern redneck portion of the New Deal Coalition, who went on to be one of the heroes of the Supreme Court’s 1950’s civil rights revolution. In our teenaged years we worked at the Supreme Court with some savvy veteran black messengers who had daily dealings with Black and assured us he never did get over his Klan days when it came to dealing with black people, but the old cracker’s hidebound adherence to a plain sense reading of the 14th amendment compelled to him vote with the Warren Court on most of the big civil rights, even if he did think that America did a damned fool thing in ratifying it, and to write that common sense concurring opinion to Brown v. Topeka Board of Education that is so much more convincing than the wimpy social-science majority opinion.

A truly conservative Supreme Court would uphold the right of a citizens group to air an anti-Hillary Clinton movie even it did get some money from the evil Koch Brothers, as the Supreme Court did in the still hotly-debated Citizens United Case, but by now it would also let Lenny Bruce or any other foul-mouthed comedian, no matter how Democratic, get away with it, so for now we cautiously entrust the First Amendment to the Republicans. The Republicans are at least as staunch on the Second Amendment as on the First, which will surely enrage the Democrats further, but they’ve lately been losing in the courts on that and will have a harder time in the court of gun-owning public opinion> For the past 40 years or so the right has been skeptical about those penumbras and legalistic whatnots that yielded a constitutional right to abortion, which enrages the Democrats further yet, but a truly conservative Supreme Court would overturn a fundamental right to abortion without asserting a fetal right to life and send it all back to the states where such measures were once decided, and if the Democrats really have a winning issue it would work out to their benefit, and although there would be a lot of fuss involved it’s not as if Roe v. Wade ever ended the issue. A truly conservative Supreme Court wouldn’t impose a liberal agenda by judicial fiat, but it wouldn’t stop the people from doing such foolish things through the constitutional process.

By the end of it the Democrats will probably be opposing Gorsuch simply because he’s Trump’s nominee, and we have to admit that’s somewhat compelling. We don’t trust Trump any further than we would toss his fat orange ass, as the local saying goes, but we always figured that he could never back out of those promises he made regarding the Supreme Court. The most persuasive argument Trump’s campaign offered to reluctant Republicans was that his Supreme Court nominees would at least be better than what Democratic rival Hillary Clinton would offer, which was pretty much indisputable, and we figured he was savvy to realize that although he could indeed shoot someone on Fifth Avenue and not lose any supporters that betraying the Supreme Court promise would have been politically disastrous. For all our misgivings about Trump we like the pick based on what we know so far, and cautiously hope Gorsuch will go on to overturn that awful Kelo decision that Trump once tried to use to evict an elderly widow and draw a line on executive actions by either party’s president and otherwise uphold our radically liberal Constitution according to truly conservative principles.

— Bud Norman