Kavanaugh hearings prompt a closer look at originalism

https://www.ncronline.org/news/opinion/distinctly-catholic/kavanaugh-hearings-prompt-closer-look-originalism
MGB: Private to MSW. Kevin Walsh is still correct. Look at Corey Robin's book, The Reactionary Mind, which has a chapter on Nino and the evolution of Originalism.  This is not some theoretical concept you can find in law journals or theology. It is an actual theory by real people. The Justices are unanimous on what it now means. Even Ruth Bader Ginsburg considers herself and originalist. If you want to know what the Justices mean, read the book. It also has a great chapter on the Gauche Decorator in Chief.

There are many misunderstandings on this nomination that have nothing to do with the nominee. The controversy on Roe is the most glaring and is ginned up to fundraise on both sides. As I said at Georgetown a few years ago at your symposium, Roe is not a 5-4  matter. It looks like Kavanaugh will follow Roberts, who voted with Kennedy and Alito on the point that Roe is settled law, in that they refused to follow Scalia's lead in not overturning the Partial Birth Abortion law. The law was a stalking horse to do just that. Whether Gorsuch follows Roberts or Thomas will be determined when they get a case That is very unlikely. Precedents are very clear.

There is no real path for a case to get to the Court and the appellate courts will quash anything that tries. There are not even enough justices to get Certiori. Any new case will be either 8-1 or 7-2 in favor of Roe being settled. Both sides know this and lie about it, again, for fundraising and rabble rousing. It is shameful. Of course, if the leaders of the right to life movement are not knowledgeable, they may make Trump withdraw the nomination if he speaks the truth, but he will likely avoid it. He is young enough the know why Roe is settled law because he actually went to law school and had to answer the question of why this is so. It is legal, not theological.

The only possible exception would be action by Congress redefining when legal personhood occurs, giving the unborn standing before the law. Such a law would probably leave the first trimester pregnancies out, else every miscarriage would be considered the death of a citizen, as well as any abortion. That is how equal protection works. If you investigate abortion, you have to investigate anything. If you don't, Planned Parenthood will be reporting lots of miscarriages. Then there is tort law. In either case, it would be horrendous to watch Ave Maria and Liberty law graduates making cases on either side to get their GOP reputations as being pro-life.

What is left is making adjustments to later term abortions, which will likely follow existing practice and won't make the bishops happy because it will allow abortion of fetuses who cannot survive to birth. The bishops forbid this because they believe only God can make that decision, although God has decided already. Of course, like on suicide, they believe God to be an Ogre.

Any such law is based on the 14th Amendment and within the power of Congress to make. That issue would carry the day by the same margins as Roe would be affirmed, roughly 7-2. Questions of law do not depend on the result, but instead on the process. Until the bishops learn that (and MSW as well) they will support a strategy that cannot win, which is overturning Roe.

One last point. The Democrats either have too many documents to read or need more. They cannot have it both ways. They certainly have no right to routing memos to the POTUS, which is a ministerial function. If they want to get the real story on what went on with the Iraq War, they need to read the book Angler, which is all about Cheney and his private war policy, which Bush and Kavanaugh did not know about until DOJ lawyers threatened to take the issue of torture to the press. Any discussions involving Kavanaugh are privileged or history, but they are not relevant to the nomination, even if Kavanaugh was covering for what he could not talk about publicly.

There will be much public performance on this nomination, but the reality is that anyone else Trump would nominate will be far worse that the nominee. I am sure that the White House Counsel snuck this by Trump. He is incapable of understanding the concepts involved.