Podcast: How the legal community is reacting to the Senate vote on Kavanaugh

Brett Kavanaugh protest picAt this point, more than 1,700 law professors have signed a petition saying Supreme Court nominee Brett Kavanaugh lacks the temperament and judicial restraint necessary to sit on the high court. Kavanaugh’s nomination has not only divided the country; it has also divided the legal community. NPR has more on how members of the legal profession are reacting to the Senate’s vote on whether to confirm Kavanaugh.

Video: CNN analyst Jeffrey Toobin criticizes Trump comments on the ‘poor plight of white men’

Supreme CourtCNN analyst and author Jeffrey Toobin says Donald Trump, Jr.’s comments about the “poor plight of white men” is “garbage.

“If you sexually assault someone in high school, your life should be ruined,” Toobin added. “You life should be pursued. I mean the idea that this is somehow unjust—remember, this all started with accusations of sexual assault. How about the lives of the women who were sexually assaulted in high school?”

Meanwhile, President Trump told reporters Tuesday that “It is a very scary time for young men in America, where you can be guilty of something you may not be guilty of.” According to CNN, Trump added that “women are doing great.”

The Trumps’ comments come as the controversy surrounding Supreme Court nominee Brett Kavanaugh continues to agitate people on both sides.

Video: Ford’s lawyer explains why she wants an FBI investigation of Kavanaugh

FBI sealThe attorney for Christine Blasey Ford, the woman accusing Supreme Court nominee Brett Kavanaugh of sexually assaulting her when they were teenagers, says she wants the FBI to investigate the charges before she’ll testify to Congress. She told CNN’s Anderson Cooper that Ford has been forced into hiding because of death threats made against her since her name was revealed.

The trouble with Kavanaugh

Supreme CourtPresident Trump’s nomination of Brett Kavanaugh to the Supreme Court has reached a barrier that may not be surmountable: A college professor is accusing Kavanaugh of sexual assaulting her while they were teenagers. Some analyses at The Week offer insight into the GOP’s dilemma. Scott Lemieux wonders why Republicans are adamantly standing by the troubled nominee. His argument is that the GOP could easily find someone else on The Federalist Society’s Top 25 list to replace Kavanaugh and have them approved before the midterm election. Meanwhile, David Faris writes that The American judiciary is in serious trouble, and accuses Republicans of abusing their power:  

The GOP’s abuse of its power of judicial appointments is so widespread at this point as to feel commonplace, and it goes far beyond the behavior of Vichy Republicans in Congress. Party elites at all levels are acting like bank robbers feverishly stuffing stacks into sacks even as they hear the sirens approaching in the distance.

Ryan Cooper says Kavanaugh’s nomination reveals “the utter moral corruption of American conservatism.  And at Salon, Bob Brigham says former RNC Chairman Michael Steele claims Republicans have been privately discussing ways to remove Kavanaugh’s nomination. MSNBC’s Chris Matthews says the Kavanaugh nomination is really all about Trump.

How a Kavanaugh Court Could Nullify Roe v. Wade Without Overruling It

Supreme CourtBy WMU-Cooley Law School Constitutional Law Professor Brendan Beery

Most constitutional cases involve a bilateral construct: an individual seeks to vindicate some constitutional right, and the government claims either that no such right exists or that it—the government—has some interest of its own that overcomes the individual’s. Abortion cases are different because they arguably involve more than two interests: a woman’s interest in ending a pregnancy, the state’s interest in regulating medical procedures, and the interest of the unborn (which would seem at odds with the woman’s interest, leaving the state to advocate for that interest, too).

That is why the legal framework that has developed in abortion cases is, frankly, a hodgepodge of vague terms, categories, exceptions and exceptions to exceptions and, most recently, ad hoc balancing. In the Court’s most recent high-profile abortion decision (Hellerstedt), a case in which the now-departed Justice Kennedy sided with the Court’s four liberal justices, the Court announced that, as to any law restricting a woman’s right to end a pregnancy during pre-viability, a court must weigh the burden against the benefits derived from the law.

Under this balancing approach, the Court invalidated two Texas laws: one that required physicians at abortion clinics to have admitting privileges at a nearby hospital (even though most of them already had admitting privileges), and one that required that clinics have hospital-grade surgical facilities onsite (even though many medically induced abortions involve no surgical procedures at all). Because the laws caused the closing of many facilities altogether without producing any real benefits, the Court struck them down.

But Judge Brett Kavanaugh would likely have voted with the four conservatives to uphold the restrictions, and the question has even arisen whether he would provide the fifth vote for overruling Roe v. Wade outright. That seems doubtful; Chief Justice John Roberts, something of an institutionalist, has a track record of trying not to rock the historical boat. It is more likely that the Court will hollow out the core holding of Roe—that a woman has a fundamental right to terminate a pregnancy before the point of fetal viability—without expressly overruling it. In this way, the Court will seek to maintain its stated respect for prior precedents while at the same time, in effect, turning those precedents on their heads.

And in Hellerstedt, the Court unwittingly paved the way for the new majority to do just that. Balancing tests are a strange species of legal analysis: not all balancing tests are equal—or, more precisely, in equilibrium. Sometimes the Court adopts a neutral balancing approach: whoever has the weightier interest wins, plain and simple. But other times, the Court puts a thumb on one side of the scale. When it perceives that no sacrosanct individual right is at stake, it puts its thumb on the government’s side of the scale, applying a deferential balancing approach. When an individual asserts a fundamental liberty interest like free speech, the Court has put its thumb on the individual’s side of the scale, applying a skeptical and aggressive balancing approach.

The majority in Hellerstedt explicitly created a balancing test, but never said what kind of balancing test—deferential, neutral, or skeptical—should apply. That is a gap the new majority will exploit, veering sharply to the deferential side with a rule that goes something like this: a burden on a woman’s ability to have an abortion is only invalid if the burden is clearly excessive in relation to the benefit (that being the preservation of potential human life). By using that kind of language, the Court may uphold many if not all abortion restrictions while at the same time claiming that it is merely applying, and not overruling, prior precedents.