While America is mired in closely monitoring the Senate confirmation process of Judge Brett Kavanaugh under a 24-7 microscope, the big-picture issue shouldn’t be forgotten: This is actually all about abortion.
Democrats and progressive liberals have used and abused an activist Supreme Court majority for more than 50 years, with Sen. Dianne Feinstein, D-Calif., declaring previously that the 1973 Roe v. Wade opinion is a “super-precedent.” The most liberal states, including California and Hawaii in the Ninth Circuit, have continued to advance the pro-abortion agenda, taking the narrative from “safe, legal, and rare” to “don’t knock it till you try it.”
Encouraging abortion and trying to force even pro-life pregnancy centers to advertise abortion was the issue in last term’s Supreme Court case National Institute of Family and Life Advocates v. Becerra. In that case, which was a close 5-4 majority, the Supreme Court held that the government cannot compel people to say things they don’t believe. This was a major win for the rule of law and the limited powers the Constitution gives government.
Last week, in a related case, Calvary Chapel Pearl Harbor v. Suzuki, another pro-life pregnancy center challenged a Hawaii law that required centers to provide referrals to a state agency that funds abortions, including posting large signs and notices in the pro-life clinics’ facilities. The District Court judge declared the compelled speech mandate unconstitutional in light of NIFLA and permanently enjoined Hawaii from enforcing the law.
This isn’t just a win on behalf of the pro-life community as an outcome-driven agenda, but a win for all Americans who understand what free speech and constitutional protections genuinely mean. Certainly pro-life advocates want to protect all unborn babies from abortion, but the idea in reaching that goal is not to manipulate the judicial system, upend the rule of law, and disregard the Constitution. Rather, it’s preserving and protecting it. Overturning Roe’s activist and unconstitutional precedent and obtaining judicial opinions like NIFLA are consistent with our system of government and rule of law.
This is why the progressive Left is absolutely terrified of Kavanaugh and would have attacked any conservative nominee with equal force and fury. They believe they must keep their outcome-driven majority control over the Supreme Court at any cost, because if a majority actually held consistently with the Constitution and fulfilled their actual oath of office, the Left’s abortion agenda would come to a screeching halt.
There’s a reason that Justice Anthony Kennedy was known as the most powerful man in America because of his swing vote on the Supreme Court. He rightly held for the Constitution in cases like NIFLA concerning compelled speech, but the Left has been confident in his consistent social agenda, including writing the majority opinion in the same-sex marriage case Obergefell v. Hodges in 2015 and unwillingness to act constitutionally on most social issues.
But if even Kennedy held for the correct constitutional decision in a case like NIFLA that is now serving to assist other states’ compelled speech laws and in the Left’s view stymie their abortion activism, how much more would a consistently faithful conservative originalist like Brett Kavanaugh pose an extreme risk to all the Left holds dear?
This isn’t about Kavanaugh. This is about the Left’s abortion agenda. The fact that it was Sen. Feinstein to openly declare Roe a “super-precedent” last year, coupled with her focus on the abortion issue during the four days of Kavanaugh’s hearings, tells everything.
With the newest transparent delay tactics surfacing Sunday night, the Senate Judiciary Committee should simply hold a vote and confirm Kavanaugh. He is imminently qualified. If the Democrats can bring forth credible, corroborated evidence to substantiate their allegations, let them. If evidence proves the allegations against Kavanaugh true, the Constitution provides for removal of a Supreme Court justice. It wouldn’t be difficult to get Republicans to impeach Kavanaugh and replace him with another conservative on the Supreme Court.
The burden would then rightly be on the claims and allegations, and the Supreme Court would not be held hostage while the Democrats play delay tactics. If a vote is called and Kavanaugh is confirmed, you can bet Democrats would demand an immediate hearing, stop stalling, and produce their clients. And meanwhile, Justice Brett Kavanaugh and a full Supreme Court could go about their business starting Oct. 1.
That business is everything the Democrats fear most — a majority faithfully applying our Constitution.
Jenna Ellis (@jennaellisJDFI) is a contributor to the Washington Examiner’s Beltway Confidential blog. She is Director of Public Policy at the James Dobson Family Institute. She is a constitutional law attorney, radio host, and the author of The Legal Basis for a Moral Constitution. She can be reached at [email protected].
