Think like a judge

When the Kavanaugh nomination process began, everyone knew it would end with him being confirmed.  Harry Reid triggered the “nuclear option”, and with that Supreme Court justice nominations became a guarantee for the party that controls the Senate.  Reid’s gamble was that Republicans had become obsolete and wouldn’t have the opportunity to use the nuclear option themselves.  Or maybe that they simply wouldn’t.  After all, when it comes to judicial confirmation hearings, Republicans have a history of being more honorable than their Democrat counterparts.  See Ted Kennedy versus Robert Bork.

Republicans had a gamble of their own with Merrick Garland.  Garland was the best qualified and most conservative judge Obama was going to select.  He certainly passed the Democrat litmus tests on abortion and anti-gun rights.  But even as an Obama appointee, there was nothing to disqualify him.  Republicans gambled that the voters might have something to say about Scalia being replaced with an Obama appointee.  Indeed they did.

With Kavanaugh, it’s not an election year.  The nuclear option is on the table and will be used.  Democrats can’t stop this.  They can only make a decision whether to be honorable and uphold Senate decorum and tradition, or to come out in a crazy circus to disrupt, delay, and turn the entire confirmation hearing into a joke.  They chose the latter.

We’ve already noted the antics of Corey Booker and Kamala Harris.  Harris pretended she had some sort of damning information about Kavanaugh’s interference in the Mueller investigation.  But when pressed, it turned out she was lying.  She had nothing.  Booker’s attempt was even more pathetic.  In a grandstanding moment for the history books, Booker announced he was going to violate Senate rules and get himself expelled in order to release emails the GOP was supposedly hiding.  But his mission was a bust.  The emails had already been cleared to be released.  On top of that, rather than damning information, the emails showed that Kavanaugh opposes racism and is concerned primarily with accuracy.  Booker’s attempt, at best, was to delay hearings by creating a side show where Republicans stopped everything to kick him off the committee.  But crucifying oneself with no help is pretty hard.

Then of course you had the paid off protesters.  Set to go off one every couple minutes with shrieks and antics until they were arrested.  In all, Democrats created a pretty good precedent and roadmap for every future nomination process.  Clowns to the left, jokers to the right.  But in the end, their antics did nothing more than establish the character of the radicals on the Left.

With all else lost, Democrats tried to turn the Kavanaugh nomination into a campaign rallying cry.  It goes something like this: Kavanaugh is going to single handedly reverse Roe v Wade, and next time you want birth control you’re going to have to go into a dark alley with a clothes hanger.  Where did they get this?  Kavanaugh ruled on Priests for Life v. The United States Department of Health and Human Services.  According to the state, Priests for Life had to provide birth control to their employees.  Priests for Life, as you can imagine, believed this would violate their religious principles.

As a result, leftist groups and media outlets have characterized Kavanaugh as believing birth control causes abortions and willing to rule that birth control should be illegal.  Both of these characterizations are patently false.  But to understand this, you have to think like a judge, not a politician.

Judge Kavanaugh is not a doctor.  He’s not a priest, a scientist, or employer.  He’s a judge.  His job is to listen to arguments and make a decision based on applicable law.  In Priests for Life v The United States, the Department of Health and Human services had to successfully argue that the right of an employee to have their employer buy their birth control for them superseded the right of members of the clergy to act upon their deeply held religious beliefs.  Priests for Life was not prohibiting their employees from purchasing their own birth control.  They weren’t prohibiting employees from buying supplemental insurance to cover birth control.  They simply were not buying birth control or insurance that covers birth control for their employees.

Additionally, birth control is and supplemental insurance are not cost prohibitive.  It’s not like birth control is $10,000 a month and the only way to access it is through an employer sponsored plan.  Any woman or man can use the wages from their employer to purchase birth control if that is something they choose to buy.  The government can’t force employers to make purchasing decisions for their employees when being forced to make that purchase violates the employer’s constitutional rights.

Priests for Life v the United States was not a decision about Kavanaugh’s opinion on birth control.  It wasn’t a scientific statement about birth control.  It wasn’t a decision that employers could force employees to not buy birth control.  When the state and the Priests made their arguments, the Priests successfully showed that being forced to neglect their religious views to make purchasing decisions for their employees was a greater burden than an employee having to use $9 from their monthly wages to go to Wal Mart and pick up their birth control.

In the future, someone may be able to successfully argue that Priests for Life is in the wrong if they, say, put “thou shalt not purchase birth control with the wages we pay you” in their employee handbook.  That could be a violation of the employee’s right to privacy.  Although, in the past employees have been legally fired for violating codes of conduct and they have been restored to their jobs by the courts when violating codes of conduct for religious reasons.  These are precedents the court has to weigh.

Democrats insisting that Kavanaugh is anti-birth control or thinks birth control causes abortions are doing nothing more than fear mongering.  Kavanaugh was presented with both sides of an argument and ruled in favor of the first amendment over an overreaching government law that imposes an undue burden on religious employers.  I’m glad he did.  The Left might be glad he did too when someday a future government attempts to say employers have right to force their employees to wear a rosary.

Whether religious freedom is important to Judge Kavanaugh or not is also irrelevant.  It is in the Constitution, and that is what he as a judge must take into account.  We have three branches of government and methods to amend the Constitution.  If the American people want the first amendment gone, the courts is the wrong branch of government to get that accomplished.

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