ABC's Terry Moran: Overturning Roe won't be legitimate if Kavanaugh and Thomas are deciding votes

Via Newsbusters, I believe Moran is from the “news” side of ABC News, not the opinion side. (Is there an opinion side?) Yet his spiel here isn’t offered with the usual check-the-box “Democrats say” prefaces.

Which I think is a good thing. Moran’s leanings have never been a secret. If the media’s going to agitate for saving Roe in the post-Kennedy era, and they are, a lot, better that they sign their names to it.

Another thing that’s revealing is how many different arguments in the alternative against the legitimacy of overturning Roe are bundled into a clip that runs less than a minute in length. A simple argument capitalizing on the news du jour would be that any majority which includes Kavanaugh will be illegitimate because of the nature of the allegations against him. A more complex argument would be that any majority which includes Kavanaugh and Clarence Thomas is doubly illegitimate because they’ve both been accused on the record of sexual assault. Make that claim and you’ve got your bases covered even if Kavanaugh ends up being borked and his replacement ends up on the Court as the fifth anti-Roe vote. Was Clarence Thomas one of the five votes too? Then it doesn’t count.

But Moran’s one step ahead of even that. He notes that any all-male majority with Kavanaugh and Thomas that overturns Roe would be suspect. Make that claim and now you’re lined up to challenge an anti-Roe ruling even if Kavanaugh is borked and Thomas retires. Was the majority composed of five men? Well, then, it’s illegitimate.

And what if, say, Amy Coney Barrett were to replace Kavanaugh as nominee and provide the fifth vote? I’ve seen an argument floating around today on social media to discredit that eventuality as well. If Gorsuch and a second Trump appointee are part of a majority that overturns Roe, it would mean that two of the five votes came from justices nominated by a president who lost the popular vote. (Roberts and Alito were also nominated by a president who lost the popular vote, but only in his first run for president. They were each nominated in Bush’s second term.) Put aside the fact that the Constitution doesn’t care about that. Plenty of people grasping for reasons to believe that an outcome they despise is unfair will grasp at it.

The entire lesson of the past two weeks, really, is that any weapon that can be used to discredit a nascent anti-Roe majority will be used. You saw it again as recently as yesterday. “Kavanaugh’s anger at being accused of rape proves he lacks the cool temperament needed to sit on the bench,” we were told. Meanwhile, if Kavanaugh had been low-key, the fact that he showed no emotion while Ford did would have been cited as evidence that she was telling the truth and he wasn’t, and his nomination would be dead today. Opposing the Good People means forever operating under a cloud of suspicion. What the cloud happens to consist of on a particular day is almost incidental.