Why is Kavanaugh so unpopular?

[J. J.]

Do you guys realize who the swing vote on Obamacare was?  It was Roberts.

Here is a chart showing the rough ideology of the current Court:

 

We have two very conservative Justices; Gorsuch does not have a long record at this point so we don't know where he ends up.  There are two very liberal Justices, and two that are liberal.    We have Roberts as being fairly middle of the road.

So far, Gorsuch has not been Scalia reincarnated, nor Alito's soulmate. Maybe he will move to the right, but right now, he is basically the conservative Kagan.

Three things have to happen for the Court to be really conservative.

1.  Kavanaugh has to be exceptionally conservative.

2.  Gorsuch has to become much more conservative.

3.  Roberts, or one of the liberal Justices, have move fairly substantially to conservative side.

Roberts has drifted slightly to the center.   Gorsuch, at least for now, looks like he is far to the left of Scalia.  Kavanaugh, from what little we have so far, appears to be closer to a Roberts than to a Scalia. 

[J. J.]

Honestly I think because “Trump nominated a judge who thinks presidents shouldn’t be investigated” is a pretty simple and damaging story for Joe Q. Public

I'm not sure if it is "investigated" or "indicted."  There is a difference. 

[J. J.]

Because he's a conservative, and people think he's going to overturn Roe vs. Wade with the help of the other conservative court members.

I think that some people confuse conservative political views and conservative jurisprudence.  A conservative judge is one who would not overturn precedent, at least not without a solid constitutional reason.

For example, Rehnquist disagreed with Miranda vs Arizona when it was decided.  When the issue came before the Court in Dickerson vs. US, Rehnquist upheld it, and wrote the decision doing so.  https://supreme.justia.com/cases/federal/us/530/428/

He wrote:

"This Court declines to overrule Miranda. Whether or not this Court would agree with Miranda's reasoning and its rule in the first instance, stare decisis weighs heavily against overruling it now. Even in constitutional cases, stare decisis carries such persuasive force that the Court has always required a departure from precedent to be supported by some special justification."

There can be no doubt that Rehnquist was a conservative jurist and that SCOTUS was more conservative in 2000, when this was decided and 1966, when Miranda was decided.

[J. J.]

This is a no brainer, and yet many of you seem to fail to see the underlying issue.

There will be a conservative majority on the Court for a long time, perhaps decades.

Kavanaugh himself could be on the Court for as many as 30-40 years.

Shouldn't that be of concern to anyone who doesn't want to see that happen?

This shouldn't be such a personal issue.

Roberts is not all that conservative.  His voting record is very close to Kennedy.

At worst, there will be 4 strong conservatives, 1 in the middle, 2 liberals, and 2 strong liberals.  That assumes that both Gorsuch and Kavanaugh (if confirmed) team up with Thomas and Alito.

I don't think that there is enough information to classify Gorsuch, but so far, he is more liberal than Thomas or Alito.

I'm wondering if we will see more 7 to 2 decisions.   

[J. J.]

OK, he may not be as conservative as the other four, but I think he is more often than not a conservative.

I can say the same thing about Beyer and Kagan, except that they tend to a bit more to the left of center as Roberts is to the right.  Further both Ginsburg and Sotomayor have moved to the left.

If we appoint a liberal we get a liberal majority.  Is your argument against Kavanaugh that you want a liberal majority on the Court.

[J. J.]

This is a no brainer, and yet many of you seem to fail to see the underlying issue.

There will be a conservative majority on the Court for a long time, perhaps decades.

Kavanaugh himself could be on the Court for as many as 30-40 years.

Shouldn't that be of concern to anyone who doesn't want to see that happen?

This shouldn't be such a personal issue.

Roberts is not all that conservative.  His voting record is very close to Kennedy.

At worst, there will be 4 strong conservatives, 1 in the middle, 2 liberals, and 2 strong liberals.  That assumes that both Gorsuch and Kavanaugh (if confirmed) team up with Thomas and Alito.

I don't think that there is enough information to classify Gorsuch, but so far, he is more liberal than Thomas or Alito.

I'm wondering if we will see more 7 to 2 decisions.  

Roberts and Kennedy ARE/WERE CONSERVATIVES.

They would have been considered Rehnquist's closest ideological allies if they served on the 70's. We've only just been moving the goalposts as to what constitutes a "conservative" justice for 40 years.  

Oh, and saying Gorsuch (maybe, possibly) isn't as conservative as Thomas and Alito is like saying the bottom of the Atlantic Ocean isn't as deep as the Marianas Trench.

One of those "conservatives" voted that Obamacare was constitutional; the other voted that is unconstitutional to prohibit same sex marriage.  It is hard to call those justices "conservatives,"or at least "strong conservatives." 

[J. J.]

This is a no brainer, and yet many of you seem to fail to see the underlying issue.

There will be a conservative majority on the Court for a long time, perhaps decades.

Kavanaugh himself could be on the Court for as many as 30-40 years.

Shouldn't that be of concern to anyone who doesn't want to see that happen?

This shouldn't be such a personal issue.

Roberts is not all that conservative.  His voting record is very close to Kennedy.

At worst, there will be 4 strong conservatives, 1 in the middle, 2 liberals, and 2 strong liberals.  That assumes that both Gorsuch and Kavanaugh (if confirmed) team up with Thomas and Alito.

I don't think that there is enough information to classify Gorsuch, but so far, he is more liberal than Thomas or Alito.

I'm wondering if we will see more 7 to 2 decisions.  

Roberts and Kennedy ARE/WERE CONSERVATIVES.

They would have been considered Rehnquist's closest ideological allies if they served on the 70's. We've only just been moving the goalposts as to what constitutes a "conservative" justice for 40 years.  

Oh, and saying Gorsuch (maybe, possibly) isn't as conservative as Thomas and Alito is like saying the bottom of the Atlantic Ocean isn't as deep as the Marianas Trench.

One of those "conservatives" voted that Obamacare was constitutional; the other voted that is unconstitutional to prohibit same sex marriage.  It is hard to call those justices "conservatives,"or at least "strong conservatives." 

Shelby County v. Holder, FEC v. Citizens United, Burwell v. Hobby Lobby, and Janus v. AFSCME were absolutely not moderate decisions, and both voted on the hard right side of the court in those decisions.

Indeed, Kennedy made conservative rulings in 71% of 5-4 cases and Roberts has done so 82% of the time in 5-4 decisions. If that's the definition of a "moderate judge," then the term "moderate" has no meaning anymore.

Then you are saying, a conservative won't make a difference.

[J. J.]

It will make a difference on a couple cases though. Arizona State Legislature v. AIRC (which made independent redistricting commissions constitutional) will be guaranteed to be overturned by Kavanaugh, for example, since he was the deciding vote and Roberts dissented.

How much of a practical difference would that make?

The electorate of Arizona can elect legislators that could establish the commission, or that could submit it to the electorate as a constitutional amendment, complying with the dissent.   Either way, they would need a majority of the legislature, but the same people that vote for the legislature would be voting in the referendum.

I agree with Roberts when he wrote:  “Failure of political will does not justify unconstitutional remedies." SCOTUS ruled that the legislature can be circumvented; the Court has tended to say the opposite. 

The dissent is not saying that a commission is unconstitutional.  It is saying that the establishment of one must go through the legislature.

[J. J.]

Polarization.

I would not call it polarization.  I think it is a misunderstanding of the dissent.  For Roberts, this was a process question.

Is there a big practical difference between the majority and Roberts decisions?  One is saying that a commission is valid if the mechanism creating it is adopted by the legislature.   The other says that the legislature need not be involved.  That is it.

Here is Roberts' ruling.  https://www.law.cornell.edu/supremecourt/text/13-1314#writing-13-1314_DISSENT_4

It deals with what constitutes a "legislature."  It doesn't say that the legislature cannot create a commission.  It doesn't say that a referendum can't be used; there was case law permitting a referendum to be part of the process.  It doesn't even say that the legislature has to be involved in the drawing of the lines of the districts or approving of those drawn lines.

It does say that, when this process is set up, it has to go through the legislature.  That is it. This is the big ideological difference were are talking about.