# The "liberal case" for Kavanaugh is nonsensical
**URL:** https://boards.straightdope.com/t/the-liberal-case-for-kavanaugh-is-nonsensical/819262
**Category:** Great Debates
**Created:** [August 8, 2018, 7:33am UTC](https://boards.straightdope.com/t/the-liberal-case-for-kavanaugh-is-nonsensical/819262 "2018-08-08T07:33:03Z")
**Posts on this page:** 20
**Page:** 2
### Author:  [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)
#### Post date: [August 8, 2018, 5:15pm UTC](https://boards.straightdope.com/t/the-liberal-case-for-kavanaugh-is-nonsensical/819262/21 "2018-08-08T17:15:36Z")
> [@Bone](#):
>
> Every time someone brings up Garland, I laugh in the inside. Every. Single. Time. It’s not as funny as ‘but her emails’, but it’s right up there.
Party Before Country, right?
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### Author:  [@Budget\_Player\_Cadet](https://boards.straightdope.com/u/Budget_Player_Cadet)
#### Post date: [August 8, 2018, 5:37pm UTC](https://boards.straightdope.com/t/the-liberal-case-for-kavanaugh-is-nonsensical/819262/22 "2018-08-08T17:37:17Z")
> [@Shodan](#):
>
> Haven’t we kind of done the OP to death? “Republican judges are bad people because they follow the Constitution instead of the editorial board of the New York Times” - been there, yawned at that.
If this is what you believe I’m saying, you haven’t read the thread. Or the first post.
> [@](#):
>
> And the part about how textualists make it up just as much as activists is just projection.
Truly you have convincing arguments. All… zero of them. [:rolleyes:](http://picayune.uclick.com/comics/ch/1987/ch870118.gif)
> [@puddleglum](#):
>
> “Let’s dispense with the idea that Judges exist, first and foremost, as unbiased, non-participatory referees of the law. Despite what some here might insist, that has literally never been true, and it’s especially untrue in contentious supreme court cases surrounding issues that the constitution is at best unclear on.”
> If Judges are not unbiased, non-participatory referees of the law, what are they?
What you’re describing isn’t “judges”. It’s “robots”. There are very few interesting decisions to be made that can be made based solely on the exact text of the law. Most cases end up with two principles guaranteed by the constitution in opposition, or with two laws contradicting each other, or with people needing to check whether something that limits a right is actually _infringing_ on that right.
Even in those cases where it’s a clear case of the law, the facts on the ground of the case tend to matter - whether the defendant was merely assaulted or whether what happened to them qualifies as “torture” can be relevant, to pull one example from Kavanaugh’s own tenure - and in these cases, when the facts seem to disagree with the rich and powerful, Kavanaugh gets it wrong quite often.
> [@](#):
>
> Once you dismiss the idea that judges are supposed to be unbiased then legal disputes are just exercises in raw power. If that is true it is definitional that those without power are going to be hurt.
This is something I don’t have a good answer for. That said, judges that take that exercise of power seriously are not impossible to come by. Kavanaugh doesn’t. He seems thoroughly uninterested in it, and hides that lack of interest behind the excuse of textualism. But I don’t think that excuse holds water in the slightest.
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### Author:  [@Icarus](https://boards.straightdope.com/u/Icarus)
#### Post date: [August 8, 2018, 6:15pm UTC](https://boards.straightdope.com/t/the-liberal-case-for-kavanaugh-is-nonsensical/819262/23 "2018-08-08T18:15:42Z")
> [@Budget\_Player\_Cadet](#):
>
> That said, judges that take that exercise of power seriously are not impossible to come by. Kavanaugh doesn’t. He seems thoroughly uninterested in it, and hides that lack of interest behind the excuse of textualism. But I don’t think that excuse holds water in the slightest.
An argument could be made that Kavanaugh is instead very attuned to the exercises of power.
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### Author:  [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)
#### Post date: [August 8, 2018, 6:34pm UTC](https://boards.straightdope.com/t/the-liberal-case-for-kavanaugh-is-nonsensical/819262/24 "2018-08-08T18:34:53Z")
> [@ElvisL1ves](#):
>
> Nobody said that. The point was about \*this \*President and \*this \*vacancy being illegitimate. Can you address that?
Okay, so how is _this_ vacancy illegitimate? Did I miss Mitch McConnell forcing Kennedy to remain in office until Obama’s term ended, or something?
> [@Shodan](#):
>
> And the part about how textualists make it up just as much as activists is just projection.
Rubbish. Your hero Scalia made up both history and rules of interpretation in Heller out of whole cloth (despite having no reason to do so since the plain text arguably supported his desired result anyway).
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### Author:  [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)
#### Post date: [August 8, 2018, 6:44pm UTC](https://boards.straightdope.com/t/the-liberal-case-for-kavanaugh-is-nonsensical/819262/25 "2018-08-08T18:44:12Z")
> [@Really\_Not\_All\_That\_Bright](#):
>
> Okay, so how is _this_ vacancy illegitimate?
Whether you agree or not, the reasons are A. It’s made by an illegitimately elected President, and B. The last illegitimate vacancy hasn’t been cancelled out yet.
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### Author:  [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)
#### Post date: [August 8, 2018, 6:56pm UTC](https://boards.straightdope.com/t/the-liberal-case-for-kavanaugh-is-nonsensical/819262/26 "2018-08-08T18:56:02Z")
“Illegitimately elected?” We are into woo-woo territory here.
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### Author:  [@UltraVires](https://boards.straightdope.com/u/UltraVires)
#### Post date: [August 8, 2018, 7:08pm UTC](https://boards.straightdope.com/t/the-liberal-case-for-kavanaugh-is-nonsensical/819262/27 "2018-08-08T19:08:14Z")
> [@ElvisL1ves](#):
>
> Whether you agree or not, the reasons are A. It’s made by an illegitimately elected President, and B. The last illegitimate vacancy hasn’t been cancelled out yet.
1. How is the President illegitimate? He won the electoral college. He’s President.
2. Sure it was cancelled out. Gorsuch replaced Garland filling the vacancy.
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### Author:  [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)
#### Post date: [August 8, 2018, 7:16pm UTC](https://boards.straightdope.com/t/the-liberal-case-for-kavanaugh-is-nonsensical/819262/28 "2018-08-08T19:16:55Z")
> [@Really\_Not\_All\_That\_Bright](#):
>
> “Illegitimately elected?” We are into woo-woo territory here.
I said you might not agree. 😉 I might not either. But it’s out there.
**UltraVires** , you’re giving a lawyer’s response, not a citizen’s.
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### Author:  [@Budget\_Player\_Cadet](https://boards.straightdope.com/u/Budget_Player_Cadet)
#### Post date: [August 8, 2018, 7:35pm UTC](https://boards.straightdope.com/t/the-liberal-case-for-kavanaugh-is-nonsensical/819262/29 "2018-08-08T19:35:52Z")
Yeah guys, can we maybe drop the “illegitimate president” stuff here? Trump is the president. He gets to make judicial nominations.
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### Author:  [@UltraVires](https://boards.straightdope.com/u/UltraVires)
#### Post date: [August 8, 2018, 7:37pm UTC](https://boards.straightdope.com/t/the-liberal-case-for-kavanaugh-is-nonsensical/819262/30 "2018-08-08T19:37:00Z")
But to the OP, it is not for a judge to be on the side of a worker or the corporation. It is not for a judge to be on the side of the environment or on a woman’s side.
The idea is to apply the law. If the law means that the worker wins over the corporation, then that is the right result. Likewise, if the law means that the workers gets screwed by the corporation, then a judge has to realize that it is an unfortunate result, yet it is a correct result.
All the things listed in the OP can be changed by the democratically elected Congress. Every.One. Of. Them. The problem that I have with your side is that it doesn’t matter whether you win at the ballot box; you want the courts to give you the win anyways. That is not representative democracy.
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### Author:  [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)
#### Post date: [August 8, 2018, 7:37pm UTC](https://boards.straightdope.com/t/the-liberal-case-for-kavanaugh-is-nonsensical/819262/31 "2018-08-08T19:37:07Z")
**BPC** : Tell McConnell.
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### Author:  [@UltraVires](https://boards.straightdope.com/u/UltraVires)
#### Post date: [August 8, 2018, 7:40pm UTC](https://boards.straightdope.com/t/the-liberal-case-for-kavanaugh-is-nonsensical/819262/32 "2018-08-08T19:40:06Z")
> [@ElvisL1ves](#):
>
> **BPC** : Tell McConnell.
Tell him what? Obama nominated Garland as he had the power to do. Nothing says that the Senate MUST give advise and consent. Tell Obama that.
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### Author:  [@John\_Mace](https://boards.straightdope.com/u/John_Mace)
#### Post date: [August 8, 2018, 7:44pm UTC](https://boards.straightdope.com/t/the-liberal-case-for-kavanaugh-is-nonsensical/819262/33 "2018-08-08T19:44:06Z")
> [@ElvisL1ves](#):
>
> I said you might not agree. 😉 I might not either. But it’s out there.
People are saying it! That’s considered a legitimate argument?
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### Author:  [@Bone](https://boards.straightdope.com/u/Bone)
#### Post date: [August 8, 2018, 8:04pm UTC](https://boards.straightdope.com/t/the-liberal-case-for-kavanaugh-is-nonsensical/819262/34 "2018-08-08T20:04:43Z")
> [@Budget\_Player\_Cadet](#):
>
> Firstly, that he almost never goes to bat for the weak or against the powerful. He is very consistently on the side of the bigger fish, against unions, against protecting the rights of workers, et cetera.
>
> Secondly, that he never shows any awareness of how power disparities can impact things like working relationships (consider how he describes arbitration in the [Epic Systems](https://www.supremecourt.gov/opinions/17pdf/16-285_q8l1.pdf) decision).
>
> Thirdly, that he does not seem to care about the harm caused by his decisions, or really harm at all, consistently downplaying the harm done in cases where his decision would have led to people getting off the hook for torture, unsafe work environments which lead to people’s death, and more.
[ul]
[li]If the law favors the powerful, should a judge rule in favor of the weak?[/li][li]If the law ignores power disparities, should a judge rule based on who has greater power?[/li][li]If the law does not care about the harm caused by its implementation, should a judge consider the impact of implementing the law as written?[/li][/ul]
In my view, none of the things identified in your post are negative when it comes to selecting a judge.
I looked at the linked quiz from CurrentAffairs, in all of its stupid glory. They say that textualism involves shedding morality and being blind to the stakes and consequences of one’s decision making. Sounds great to me. I don’t want a judge to based their rulings on their idea of what is moral. But these are not liberal arguments and you’re right, there is no meaningful liberal case for Kavanaugh. The only reason a liberal should support Kavanaugh is if they think the next alternative would be worse. That’s the real politik of it - that it makes no difference whether liberals support or oppose Kavanaugh.
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### Author:  [@UltraVires](https://boards.straightdope.com/u/UltraVires)
#### Post date: [August 8, 2018, 8:13pm UTC](https://boards.straightdope.com/t/the-liberal-case-for-kavanaugh-is-nonsensical/819262/35 "2018-08-08T20:13:08Z")
> [@Bone](#):
>
> [ul]
> [li]If the law favors the powerful, should a judge rule in favor of the weak?[/li][li]If the law ignores power disparities, should a judge rule based on who has greater power?[/li][li]If the law does not care about the harm caused by its implementation, should a judge consider the impact of implementing the law as written?[/li][/ul]
> In my view, none of the things identified in your post are negative when it comes to selecting a judge.
>
> I looked at the linked quiz from CurrentAffairs, in all of its stupid glory. They say that textualism involves shedding morality and being blind to the stakes and consequences of one’s decision making. Sounds great to me. I don’t want a judge to based their rulings on their idea of what is moral. But these are not liberal arguments and you’re right, there is no meaningful liberal case for Kavanaugh. The only reason a liberal should support Kavanaugh is if they think the next alternative would be worse. That’s the real politik of it - that it makes no difference whether liberals support or oppose Kavanaugh.
I agree with all of this. I read all of the links and Kavanaugh was absolutely right in each case.
Especially the Sea World one. I’m not sure how that is even in dispute. Yes, swimming with killer whales is dangerous (who’d a thunk it?) but the policy decision of whether to allow such a thing or other dangerous activities like football or NASCAR is one left to a legislative body and not the Department of Labor under the guise of having a safe workplace.
Saying that Sea World could have made the workplace safer by not having a “swimming with killer whales” show is no different than saying that MLB can have a safer workplace by using a wiffle ball or that the NFL could be safer by playing two hand touch. The more I read Kavanaugh’s “horrible” decisions, the more I like him.
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### Author:  [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)
#### Post date: [August 8, 2018, 8:14pm UTC](https://boards.straightdope.com/t/the-liberal-case-for-kavanaugh-is-nonsensical/819262/36 "2018-08-08T20:14:41Z")
> [@UltraVires](#):
>
> Nothing says that the Senate MUST give advise and consent.
Again, not a citizen’s answer.
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### Author:  [@puddleglum](https://boards.straightdope.com/u/puddleglum)
#### Post date: [August 8, 2018, 8:15pm UTC](https://boards.straightdope.com/t/the-liberal-case-for-kavanaugh-is-nonsensical/819262/37 "2018-08-08T20:15:41Z")
> [@Budget\_Player\_Cadet](#):
>
> What you’re describing isn’t “judges”. It’s “robots”. There are very few interesting decisions to be made that can be made based solely on the exact text of the law. Most cases end up with two principles guaranteed by the constitution in opposition, or with two laws contradicting each other, or with people needing to check whether something that limits a right is actually _infringing_ on that right.
>
> Even in those cases where it’s a clear case of the law, the facts on the ground of the case tend to matter - whether the defendant was merely assaulted or whether what happened to them qualifies as “torture” can be relevant, to pull one example from Kavanaugh’s own tenure - and in these cases, when the facts seem to disagree with the rich and powerful, Kavanaugh gets it wrong quite often.
>
> This is something I don’t have a good answer for. That said, judges that take that exercise of power seriously are not impossible to come by. Kavanaugh doesn’t. He seems thoroughly uninterested in it, and hides that lack of interest behind the excuse of textualism. But I don’t think that excuse holds water in the slightest.
You say what judges do is to apply reasoning to difficult cases and that things are not clear. Yet in the OP you link to an article that says that not only are things so clear that disagreeing with the authors conclusion makes Kavanaugh a bad judge, the evidence is so overwhelming that disagreeing makes Kavanaugh a bad person. Having read the controversial opinions it seems clear that cases involved are not clear cut and that his rendering of those decisions is simplified and twisted to the point of dishonesty. In Saleh v Titan I found myself agreeing with Kavanaugh when I read his opinion and then with Garland when I read his. It is a difficult case and no one should be accused of being a bad person because of their opinion on it. In reading his opinions I was struck by how much he respects Supreme Court precedence and seeks to operate within that constraint.
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### Author:  [@asahi](https://boards.straightdope.com/u/asahi)
#### Post date: [August 8, 2018, 8:34pm UTC](https://boards.straightdope.com/t/the-liberal-case-for-kavanaugh-is-nonsensical/819262/38 "2018-08-08T20:34:01Z")
Actually, Bush was an illegitimate President as well, given power by an activist judge who decided that federal court could determine which votes at the state level were valid, and which ones were not. Thus, we actually have four vacancies that will have been filled by illegal presidents. Impeach the 4.
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### Author:  [@Ashtura](https://boards.straightdope.com/u/Ashtura)
#### Post date: [August 8, 2018, 8:39pm UTC](https://boards.straightdope.com/t/the-liberal-case-for-kavanaugh-is-nonsensical/819262/39 "2018-08-08T20:39:50Z")
> [@Bone](#):
>
> The only reason a liberal should support Kavanaugh is if they think the next alternative would be worse. That’s the real politik of it - that it makes no difference whether liberals support or oppose Kavanaugh.
Exactly. That should be the liberal case. If I were Trump and feeling an especially strong amount of Trump pettiness and trolling desire for liberal tears, I’d withdraw Kavanaugh, nominate Barrett instead, and made sure she got nuked in. We all know the list, and we know where it’s coming from (and its not from Trump).
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### Author:  [@UltraVires](https://boards.straightdope.com/u/UltraVires)
#### Post date: [August 8, 2018, 8:51pm UTC](https://boards.straightdope.com/t/the-liberal-case-for-kavanaugh-is-nonsensical/819262/40 "2018-08-08T20:51:38Z")
> [@asahi](#):
>
> Actually, Bush was an illegitimate President as well, given power by an activist judge who decided that federal court could determine which votes at the state level were valid, and which ones were not. Thus, we actually have four vacancies that will have been filled by illegal presidents. Impeach the 4.
I suggest that because blacks were not fully enfranchised until 1965, then every presidential election, and therefore every Supreme Court nominee prior to that date was invalid. As such, every Supreme Court decision prior to that date, including Brown v. Board of Education was “illegitimate.” Actually as it was not until 1994 that a Justice appointed to the Court prior to 1965 was no longer on the Court, no decision prior to 1994 is valid.
Jebus, dude, how far are you going to take this?
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