WSJ: Kavanaugh smear revival part of "an assault on the Supreme Court"

It might have started as an assault, but it’s turning into a circular firing squad. The editors at the Wall Street Journal angrily lashed out at the New York Times, the authors of a new book, and Democrats for rehashing the old and uncorroborated allegations against Brett Kavanaugh. Calling it an “assault on the Supreme Court,” the WSJ’s editors accuse Kavanaugh’s enemies of doing precisely what they claim Donald Trump does — undermine institutions:

This is the most radical attack on the judiciary in decades. These aren’t crank voices like those posting “Impeach Earl Warren ” billboards in the 1950s. This campaign is led by the power center of the Democratic Party, including Members of the Judiciary Committee such as Ms. Harris who vet judicial nominations. Their attack on a core democratic institution is exactly what they claim President Trump is doing, but Mr. Trump is mostly bluster.

This assault on the judiciary is being carried out with conviction and malice, as the character assassination against Justice Kavanaugh shows. One motivation is that everything on the left’s new agenda, from the Green New Deal to a wealth tax, depends on favorable court rulings. The left is used to running the nation’s law schools and controlling the courts.

But the Senate has confirmed more than 150 judicial nominees since President Trump took office. And progressives would now rather attempt a hostile takeover of Article III courts than wait to win the old-fashioned way: at the ballot box.

The partisan relitigation of Justice Kavanaugh’s confirmation is an embarrassment to the country, but it is useful in putting the 2020 election stakes in sharp relief. The future of the Supreme Court is on the ballot in Senate races as much as in the presidential race.

It might very well be intended as an attack on the Supreme Court, or the judiciary as a whole. In effect, though, it’s undermining another American institution that has been busily undermining itself for years now — the mainstream media. Hardly any ‘news’ organization bothered to vet the claims made in the New York Times and in the book by its reporters before proclaiming them as “new” allegations (they aren’t) and more corroboration of Christine Blasey Ford and Deborah Ramirez (they aren’t). We have been ripping the NYT, and rightfully so, for its dreadful hackery in this instance, but what about all of the others that used the NYT as a springboard for its own partisan advocacy?

So why is the Left so determined to burn down both institutions? Come on, man, Kyle Smith answered yesterday. We all know why, and furthermore, the authors of this attack have already admitted to the motive:

Why would the media do this? Call it the asterisk strategy. This is a coordinated, full-on effort to undermine the legitimacy of Brett Kavanaugh’s work on the Supreme Court. The reputations of news outlets are so many eggs that must be broken in pursuit of this omelet. …

This would be dubious journalism, were it journalism. But it isn’t. It’s merely an element in a political project. Kavanaugh “will always have an asterisk next to his name,” Christine Blasey Ford’s lawyer Debra Katz said at an April conference. “When he takes a scalpel to Roe v. Wade, we will know who he is, we know his character, and we know what motivates him, and that is important; it is important that we know, and that is part of what motivated Christine.”

The hope of the Democratic party and most of the media is to delegitimize Brett Kavanaugh and hence any Supreme Court decision in which he joins a 5–4 majority. The ground is being laid to make the case that, should Roe v. Wade be overturned in such a manner, that decision would exist under a cloud. It’s a desperation move: The Democrats and their media allies, the Times and The New Yorker very much included, are envisioning some extralegal or extra-constitutional maneuvers to stop Roe from being overturned.

What makes this all the more ironic is that Kavanaugh’s unlikely to be the kind of conservative firebrand that would push to overturn Roe. For that matter, neither is Judge Amy Coney Barrett, rumored to be the next in line for a Supreme Court nomination, even though she might be more temperamentally suited for the idea. The biggest obstacle is that so much precedent is already in place around Roe that the Supreme Court is not likely to see a direct challenge to it, not unless it goes way out of its way to grant cert in a case. Even then, Kavanaugh is an institutional conservative, not inclined toward judicial revolution.

Also, Roe isn’t really the issue. The big precedent blocking most abortion restrictions is Planned Parenthood v Casey, not Roe, which envisioned restrictions after the first trimester. Casey eclipsed Roe long ago. No one said hysteria is rational, of course.

In the end, what does an asterisk mean on Supreme Court decisions, anyway? Nothing. It’s the political equivalent of a participation trophy. An “asterisk” has no bearing at all on the impact that a Supreme Court decision has in legal and practical terms. It’s an assault that accomplishes nothing even when it succeeds, which it utterly failed to do in this instance. The Left is massacring the village to save it, apparently oblivious to the damage they’re doing to judicial activism — on which they have relied for decades — in their rush to undermine and delegitimize the judiciary. Why, maybe we should hold votes on policy questions like abortion instead of leaving to unelected and arguably illegitimate star chambers …

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