No More SCOTUS “Swing Vote”? Good!

NOTE: I HAVE UPDATED “U.S. SUPREME COURT: LINES OF SUCCESSION AND IDEOLOGICAL ALIGNMENT” TO REFLECT THE CONFIRMATION OF BRETT MICHAEL KAVANAUGH AS AN ASSOCIATE JUSTICE OF THE U.S. SUPREME COURT.

Justice Elena Kagan — voicing the fears of leftists — says this about the replacement of Anthony Kennedy by Brett Kavanaugh:

I think it’s been an extremely important thing for the court that in the last, really 30 years, starting with Justice O’Connor and continuing with Justice Kennedy, there has been a person who people — found the center where people couldn’t predict in that sort of way. And that’s enabled the court to look as though it was not owned by one side or another, and was indeed impartial and neutral and fair. And it’s not so clear that — I think, going forward, that sort of middle position — you know, it’s not so clear whether we’ll have it.

All of us need to be aware of that — every single one of us — and to realize how precious the court’s legitimacy is….

It’s an incredibly important thing for the court to guard is this reputation of being impartial, being neutral and not being simply an extension of a terribly polarizing process.

So the job of the Supreme Court isn’t to uphold the Constitution, but to find a middle ground between constitutional and anti-constitutional views.

I am hopeful — but not yet certain — that the addition of Justice Kavanaugh to the Court’s lineup will end the three decades of uncertainty praised by Kagan, and that it will put the Court back in the business of firmly upholding the Constitution. A business that it began to abandon in earnest during the New Deal.

Drawing on statistics kept at SCOTUSblog, I have constructed an index of defection (D) for each justice, for the 2005-2017 terms:

D = percentage disagreement (in non-unanimous cases) with members of own wing/percentage disagreement with members of opposite wing.

The wings are the “conservative” wing (Gorsuch, Alito, Thomas, Scalia, Roberts, and Kennedy) and the “liberal” wing (Breyer, Ginsburg, Kagan, Sotomayor, Souter, and Stevens).

The lower the index, the more prone is a justice to vote with the other members of his or her wing; the higher the index, the more prone is a justice to vote with members of the opposing wing. Here’s a graph of the indices, by term:

Kennedy’s long-standing proneness to defect more often than his colleagues grew markedly in the 2014-2015 terms and receded a bit in the 2016 term. His turnaround in the 2017 term restored him to the Court’s “conservative” wing.

Roberts slipped a bit in the 2017 term but was still more in step with the “conservative” wing than he had been in the 2014-2015 terms.

Gorsuch started out strongly in his abbreviated 2016 term (he joined the Court in April 2017). His slippage in the 2017 term may have been due to the mix of cases at stake.

What’s most striking about the preceding graphs, other than Kennedy’s marked departure from the “conservative” wing after the 2010 term, is the increasing coherence (ideological, not logical) of the “liberal” wing. This graph captures the difference between the wings:

The record of the past six terms (2012-2017) is clear. The “liberals” stick together much more often than the “conservatives”. Perhaps that will change with Justice Kavanough on the Court.

Where I Stand on Kavanaugh

As I acquire new information about Christine Blasey Ford’s porous and perjurious memory, I will add links at the bottom of this post.

The cold civil war that rages in America became a bit hotter on September 27, 2018, when Judge Brett Kavanaugh bared his righteous outrage and dared to attack the Democrats who are hypocritically attacking him. Hypocritically? Yes, because Ted Kennedy, Bill Clinton, and Keith Ellison (among many others) have been spared the wrath of Democrats for having committed acts during their adulthood that are far better documented than the charges leveled against Judge Kavanaugh.

Now, Kavanaugh is under attack for having bared his outrage. As if he were not entitled to outrage because, after all, “women must be believed”. There’s a syllogism in there somewhere. It probably goes like this:

Women never lie.

Christine Blasey Ford is a women.

Therefore, Christine Blasey Ford isn’t lying.

That’s a logically valid statement. But, as any respectable professor of logic would tell you, a logically valid statement isn’t necessarily a true statement. The truth of a logically valid statement depends on the truth of its premises. The major premise — women never lie — is prima facie untrue. “Women must be believed” doesn’t pass the smell test.

That’s not to say that sexual assault doesn’t happen. It does, and it should be reported to the police and investigated by the police — as soon as possible after it happens.

Nor do I rule out the possibility that something like the events retailed by CBF happened in 1982. Though there is vast room for doubt given the vagueness and lateness of CBF’s recovered memory, and the lack (thus far) of corroboration by persons she has named as participants in the “party” where she was purportedly attacked. UPDATE: CBF  may soon join the ranks of exposed hoaxers. See this.

If (most of) the Republicans on the Senate Judiciary Committee accept Kavanaugh’s denial of CBF’s allegation, it is only because the Democrats on the committee are bent on convicting Kavanaugh on the flimsiest of evidence, so as to deny the “conservative wing” of the Court a majority.. This is another battle in the cold civil war, which is about control of government and, ultimately, control of our lives. The Republicans, for all of their many faults, are on the side of liberty. The Democrats, for all of their much worse faults, are on the side of oppression. That’s what it comes down to.

In any event, with respect to CBF’s allegation, what is the worst-case scenario? It is that Kavanaugh — as a 17-year-old — did something in a drunken state that he would not have done when sober. What does that have to do with his qualifications for sitting on the Supreme Court if, as seems to be the case, he has never come close to doing something similar in the ensuing 36 years, drunk or sober?

The correct answer is “nothing”. As lawprof blogger Tom Smith says,

a lot of people in positions of high authority are not very nice at all. Some of the Dems on the Senate Judiciary Committee make me want a long, hot shower after listening to them. I care about the environment, so I don’t listen to them. Some of the judges I have known were frankly a**holes, always jockeying for political advantage and not caring deeply about the law. Indeed, we seem to have entered an era in which few people care deeply about the law, attributable mostly it seems to me, and ironically, to law professors. Judge K seems ambitious but to at least care about the law.

In politics, you reach a point, usually near the beginning but almost always by the end, where you have to choose the greater good or the lesser evil. That’s where we are with Judge K. It’s possible he did sexually assault Ford long ago and does not remember it or half-remembers it now. It’s possible Ford has confabulated her memory of this possibly fictional incident. Lots of things are possible. Few lives, except mine of course, could stand up to the sort of hyperpartisan de- and reconstruction that K’s has been subject to. K seems to have been clean as a whistle since at least his graduation from law school. If he was something of a frat boy aggressor while drunk against young women, he seems to have gotten over that a long time ago, if indeed he actually had anything to get over. And yes, I realize this tags me as one of those old white guys who does not think it’s practical to dredge up 30+ year old accusations against an otherwise outstanding-seeming judge in a hyper-political context.

Here’s the bottom line:

But just hypothetically [emphasis added], whom would you choose: a guy who was perhaps, maybe, based on far from ideal memories from 30+ years ago, a heavy drinker and sexual assaulter, but who would uphold the basic structure of the republic, versus another Sotomayor, who is arguendo personally morally upstanding, but who would gnaw obsessively at the pilings under-girding our form of government? Given the choice, I know what I would do.

As the saying goes: Me, too.


CBF’s incredibility:

Sean Davis, “Christine Blasey Ford’s Ex-Boyfriend Told Senate Judiciary He Witnessed Her Coach A Friend On Polygraphs“, The Federalist, October 2, 2018

Christopher DGroot: “Christine Ford: A Singular Fraud“, FrontPage Mag, October 9, 2018

Quin Hillyer, “Ford: Confused. Kavanaugh: Innocent“, The American Spectator, October 3, 2018

Scott Johnson, “Visualize This“, Power Line, October 3, 2018

Kimberlee Kaye, “Grassley’s Gloves are Off: Third Request for Withheld Evidence Mentions Recently Uncovered Information’“, Legal Insurrection, October 5, 2018

R. Corl Kirkwood, “Multiple Perjury Counts For Kavanaugh Accuser Ford? Records, Boyfriend Contradict Sworn Testimony“, The New American, October 3, 2018

Thomas Lifson, “Blasey Ford Facing Perjury Trap?“, American Thinker, October 3, 2018

Patricia McCarthy, “The Kavanaugh Setup Becomes Clear“, American Thinker, October 5, 2018

Ilana Mercer, “Christine Blah-Blah Ford and Her Hiippocampus“, American Greatness, October 5, 2018

Tyler Watkins, “On the Fallibility of Memory and Importance of Evidence“, Quillette, October 4, 2018

Michael Thau, “Did the Deep State Recruit Christine Blasey Ford?“, American Greatness, October 15, 2018