Uncertain as to whether the FBI investigation will turn up enough evidence to convince centrist senators to vote against confirming Brett Kavanaugh over sexual assault allegations, Democrats and their liberal allies have adopted a fallback argument: Regardless of the truth of the allegations, his angry reaction to the accusations and finger-pointing at Democrats prove that he is too partisan to be a Supreme Court justice.
This might be a compelling argument if we were living on a different planet or at a different time. But on Earth in the year 2018, it's nonsensical, and especially hypocritical coming from the Left.
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For decades, liberals have had no qualms about justices being closely aligned with the Democratic Party and hostile to Republicans. Democratic-appointed justices vote much more reliably liberal than Republican-appointed colleagues, to the point at which on major ideological issues, their votes are never in doubt, whereas conservatives always have to fret about the votes of Republican-appointed justices.
Justice Elena Kagan was President Obama's solicitor general at the time Obamacare was passed, when administration lawyers were crafting legal defenses of the law. There was even an email from her that celebrated the passage of the law at the time. Yet I didn't see Democrats or liberals, suddenly concerned about partisanship, joining calls for her to recuse herself. She of course ruled predictably in favor of the administration on the individual mandate, while Chief Justice John Roberts, a George W. Bush appointee who had previously worked in the Reagan White House, cast the tie-breaking vote to save Obamacare.
Justice Ruth Bader Ginsburg, meanwhile, had blistering public criticism of President Trump during the 2016 election on multiple occasions. "He is a faker," she said, going on to say, "He has no consistency about him. He says whatever comes into his head at the moment. He really has an ego. ... How has he gotten away with not turning over his tax returns? The press seems to be very gentle with him on that." She also said, "I can't imagine what this place would be — I can't imagine what the country would be — with Donald Trump as our president." Somehow, I don't recall liberals and Democrats demanding she resign to preserve the impartiality of the Supreme Court, nor have they grappled with the question of how she can fairly rule on cases involving the Trump administration.
Republican nominees in recent decades have included David Souter, who went on to join the liberal bloc of the court, as well as Ronald Reagan appointees Sandra Day O'Connor and Anthony Kennedy, who served as "swing justices" for decades, often ruling with liberals on major social issues. Democratic appointees do not have the same track record, because liberals demand ideological conformity from their nominees, and are rewarded with guaranteed votes on major cases.
An analysis of the voting relationships of the justices from the October 2017 term, based on statistics published at SCOTUSblog, finds that the Democratic-appointed justices voted with each other on 91.5 percent of cases. That compares to Republican-appointed justices, who voted together just 83.7 percent of the time.
Should Kavanaugh get confirmed, we'll see countless articles describing Roberts as a potential "swing justice," a term which nobody would ever apply to any Democratic nominee.
During the confirmation hearings for Kavanaugh, Democrats said it wasn't enough for him pay respect to Roe. v Wade as precedent, that he had to affirm that it was "correctly decided." Such ideological litmus tests are perfectly acceptable for Democrats, yet we know what would happen to a nominee who even hinted that it may have been wrongly decided.
So the bottom line remains this: if credible information emerges corroborating Christine Blasey Ford's account, it would mean not only that Kavanaugh committed sexual assault as a teenager, but as an adult and federal judge, he repeatedly lied under oath by denying it. That would be basis for opposing his confirmation. But liberal Democrats warning about the dangers of having somebody too partisan on Supreme Court should not be taken seriously.