Editorial | High court fight is on

Editorial | High court fight is on

If predictions are accurate, the prospective U.S. Supreme Court confirmation of Brett Kavanaugh will be bruising and bitter.

President Donald Trump this week revealed his nominee for the U.S. Supreme Court seat being vacated by longtime Justice Anthony Kennedy.

To say that Kavanaugh — a 12-year veteran of the federal appeals court in Washington, D.C., and a man of high character — is an excellent nominee understates his suitability for this extremely important position. He's an outstanding choice.

But qualifications no longer have much to do with the federal judicial nomination process, particularly with nominees to the nation's highest court.

They didn't when then-President Barack Obama nominated Merrick Garland, one of Kavanaugh's colleagues on the D.C. court of appeals, or when Trump nominated now-Justice Neil Gorsuch, and they certainly don't now.

Judicial nominations have become ideological power struggles between liberal Democrats and conservative Republicans. The late Justice Antonin Scalia and current Justice Ruth Bader Ginsburg were confirmed years ago by overwhelming and virtually unanimous margins. But those days are over.

So most Democrats, led by U.S. Sen. Richard Durbin of Illinois, and liberal interest groups have let it be known they will oppose any Trump nominee. That reflexive response was best illustrated by a group known as The Women's March.

It mistakenly released a press statement indicating its opposition to the Trump nominee, whoever it might be.

"Washington, D.C. — In response to President Trump's nomination of XX to the Supreme Court of the United States, The Women's March released the following statement."

"'Trump's announcement today is a death sentence for thousands of women in the United States,'" it reads in part.

Get ready for more of that kind of apocalyptic rhetoric that purports to predict what the high court justices will do when, and if, they review cases that involve hot-button issues.

At the same time, readers should steel themselves to nonsensical talk about the importance of stare decisis, the theory of upholding legal precedent.

All judges, of course, respect legal precedent. So while it's hardly a shock that Democratic U.S. Sen. Tammy Duckworth of Illinois indicated that she'll oppose Kavanaugh, her explanation is somewhat novel and incredibly ill-informed — she's rigorously devoted to stare decisis.

During a CNN interview, Duckworth noted that "Justice Gorsuch told (one of her colleagues) that he would respect precedent, and yet he has voted against precedent just this week with the Janus case."

Duckworth is missing the boat on this issue. Of course, justices, as a general rule, respect precedent. But the fact is that some precedents must be overturned — and have been — because they are bad law.

The Brown vs. Board of Education decision in 1954 that desegregated Southern schools overturned the long-standing separate-but-equal precedent decreed in Plessy vs. Ferguson. Gideon vs. Wainwright, which was decided in the early 1960s and requires court-appointed lawyers for indigent criminal defendants, overturned long-standing precedents.

Just last week in the Hawaii travel ban case, the U.S. Supreme Court unanimously overturned the court's 1944 Korematsu decision that upheld the legality of placing Japanese-Americans in internment camps during World War II as a national security measure.

One could go on and on because the list of decisions that have been overturned in this nation's history is rather long.

But what's the point? The Kavanaugh nomination will be decided strictly by numbers.

Can Republicans, holding a bare 51-49 Senate majority, muscle Kavanaugh through the process? Can Democrats persuade a couple Republicans — Sens. Susan Collins and Lisa Murkowski — to vote no? Will red-state Democratic senators running for re-election conclude their re-election depends on voting yes?

That's what the confirmation process will be about — nothing less and nothing more.

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