Constitutional Law Expert Makes Huge Revelation To Martha MacCallum About Brett Kavanaugh
Fox News host Martha MacCallum had constitutional law expert Jonathan Turley on her show the other night to discuss President Trump’s pick for the Supreme Court, Brett Kavanagh. In the interview, Turley revealed some telling signs about Kavanaugh’s judicial philosophy. And conservatives should be downright giddy.
Turley said, “There’s no question that the center of gravity is going to move to the right.” He continued, “So I expect that we are going to see some movement in these predictions as to where he ends up. It will he end up to the right of Kennedy? I think you can pretty much guess that.”
Here’s a partial transcript:
MACCALLUM: “Activist put together graphic that actually gives a picture of how conservative judge Kavanaugh would be compared to the other justices. He is, according to their assessment, the second most right-leaning member of the court if he is confirmed. Behind Clarence Thomas. But how long does it take for the ideology of the court to change? Jonathan Turley, constitutional law attorney. Thanks for being with us tonight. This is one of the things that helped to get President Trump elected. A lot of Republicans and conservatives are across the saw this opportunity to, for the first time in a very long time, swing the court to a conservative leaning court. When you look big picture at this as a constitutional law professor and attorney, what do you think the impact on America is going to be?”
TURLEY: “There’s no question that the center of gravity is going to move to the right. If Kavanaugh is put on the court. He is more conservative on some issues then Kennedy before him, but that was expected, indeed, that was promised by President Trump. Ironically, the person he most resembles in not just his resume, but his writing style and interpretive approach is John Roberts, who the president referred to as a disaster on the court. So I expect that we are going to see some movement in these predictions as to where he ends up. It will he end up to the right of Kennedy? I think you can pretty much guess that. But he is not as much of a known item as some of the other people on that list. Where I think you will see a very clear change our areas he’s already written. I don’t think he’s going to adopt the same approach on the death penalty as Kennedy, or on race-based admissions in colleges. I think he’s going to be more conservative on detainee rights. Those things I think are already fairly baked in given his jurisprudential views.”
USA! USA! USA! Bringing you democracy, or else! there were strains of VD that were incurable, and they were first found in the Philippines and then transmitted to the Korean working girls via US military. The 'incurables' we were told were first taken back to a military hospital in the Philippines to quietly die. – 4um
"his writing style and interpretive approach is John Roberts"
I noticed that myself. I think Trump is in big rush to appoint more conservatives. But he is not being very particular about his choices.
That said, if Brett Kavanagh is approved there is no way to know how he would vote an any particular subject that is dear to the hearts of conservatives. ;)
"When bad men combine, the good must associate; else they will fall, one by one." Edmund Burke
USA! USA! USA! Bringing you democracy, or else! there were strains of VD that were incurable, and they were first found in the Philippines and then transmitted to the Korean working girls via US military. The 'incurables' we were told were first taken back to a military hospital in the Philippines to quietly die. – 4um
TURLEY: ... Ironically, the person he most resembles in not just his resume, but his writing style and interpretive approach is John Roberts, who the president referred to as a disaster on the court. ...
John Roberts worked for 1 year (from 1980-1981) at the Supreme Court as a law clerk of Justice Rehnquist (who became Chief Justice in 1986, after serving 14 years on the high Court, and remained so for nearly 20 years). In 2005, Roberts was not only nominated for the Supreme Court by Pres. GWBush but was oddly catapulted by him directly to the position of Chief Justice over all 6 of the Republican-nominated Justices on the Supreme Court who had from 14 to 30 years more experience there than Roberts did at the time of his confirmation as a SCOTUS-newbie and Chief Justice (with not only the lowest seniority on the court but zero case decisions rendered there by him as yet). Quite a Presidential slap in the face, imo, to Justices Stevens, O'Connor, Scalia, Kennedy, Souter and Thomas.
Neither Stevens (appointed by Pres. Ford) or O'Connor (appointed by Pres. Reagan) were on the court before Rehnquist (who was appointed as a Justice by Pres. Nixon and as Chief Justice by Pres. Reagan). They had been there longer than the others noted in the paragraph above but definitely weren't the best Constitutionalists (as Rehnquist, Scalia and Thomas were). Of those two, Stevens was most distinctly not a Conservative. O'Connor was only a vacillating Conservative and swing voter during her last 10 years on the court, who sided more than 1/3 of the time with the dependably liberal bloc of Stevens, Souter (appointed by Pres. GHWBush), Ruth Bader Ginsburg (appointed by Pres. Clinton) and Stephen Breyer (appointed by Pres. Clinton). An example of O'Connor's left-leaning misjudgment is: Planned Parenthood v. Casey (1992), which struck down a husband's right to be notified if his wife was going to have an abortion. i.e. No right for the actual father of legal record by marriage (or the legal father of such record but uncertain parentage or the not so well-documented father) to know about that in advance and possibly intervene to save their child or children from being aborted. [In 1976, soon after Roe v. Wade (1973), the Supreme Court had begun striking down Pro-Life Parental Rights by ruling that the parental consent requirement for a minor to have an abortion was unconstitutional.]
Originally, Roberts was nominated to replace O'Connor, who was the first female Supreme Court Justice. She had announced her retirement from that court while Rehnquist was still the Chief Justice and was eventually replaced by Samuel Alito after Roberts suddenly got ultra fast-tracked to the Chief Justice level. She flexibly postponed her retirement until Alito was confirmed and continued working elsewhere when she left the Supreme Court, so might have stayed if asked to consider becoming the next Chief Justice. Just saying -- not that I think she or Justice Stevens should have been asked ahead of Justice Scalia simply because of their higher seniority status when he was surely the most qualified meritoriously as the best Constitutionalist of those top 3 in the category of highest seniority.
This is not an example of what Constitutional law expert Jonathan Turley likely means by his vague assertion that Brett Kavanaugh most resembles John Roberts in his writing style and interpretive approach:
One of his first papers, "Marxism and Bolshevism: Theory and Practice," won the William Scott Ferguson Prize for most outstanding essay assignment by a [Harvard] sophomore history major. ... Roberts wrote a dissent in Rancho Viejo, LLC v. Norton, 323 F.3d 1062, a case involving the protection of a rare California toad under the Endangered Species Act. ... In Roberts's view, the Commerce Clause of the Constitution did not permit the government to regulate activity affecting what he called "a hapless toad" that "for reasons of its own, lives its entire life in California."
What Turley was probably alluding to in his description of Kavanaugh as most resembling Chief Justice Roberts is that it was Kavanaugh who first framed the individual mandate/“minimum essential coverage” penalty of the Obamacare/"Affordable Care" Act/ACA as a tax; but a tax that was not yet in effect, so as to get the case against the government dismissed on jurisdictional grounds:
In November 2011, Kavanaugh dissented in Seven-Sky v Holder when the D.C. Circuit upheld the Patient Protection and Affordable Care Act (ACA), arguing that the court did not have jurisdiction to hear the case.[39][40] In his dissent concerning jurisdiction, he compared the individual mandate to a tax.[41]
In Seven-Sky, the [plaintiffs] argued that the healthcare mandate exceeded Congress’ authority under the Commerce Clause in the Constitution. The result, they argued, also burdened their religious exercise in violation of the Religious Freedom Restoration Act (RFRA).
The district court disagreed, and the [plaintiffs] appealed the decision. The appellate court affirmed, meaning that they found that the district court reached the correct decision.
One of the issues that the judges considered in the case was whether the court had the right to hear it at all. Courts can only hear matters for which they have jurisdiction. The issue of jurisdiction tends to be raised by an immediate party to the case. Here, that would have been the [plaintiffs] or the government—but neither raised the issue at this level.
Here’s the gist of the argument. There’s a provision in the Tax Code called the Anti-Injunction Act (AIA). It basically says that you can’t raise a challenge to an assessment or collection of a tax before the tax is enforced. You already know the drill: For example, you have to get a notice from the Internal Revenue Service (IRS) before you can file your case in Tax Court.
The appellate court found that the failure to maintain minimum essential coverage resulted in a penalty, a term they felt was deliberate, as opposed to a tax. The majority wrote, “Nothing we have seen suggests that Congress intended for ‘any tax’ in the Anti-Injunction Act to include exactions unrelated to taxes that Congress labeled ‘penalties.’” That interpretation, the court found, was supported by judicial construction of the Tax Injunction Act, a statute with language similar to that found in the AIA but applied to state taxes.
Kavanaugh, in a lengthy (65 page) dissent, suggested instead that Congress intended for the AIA to apply to the mandate, because the Affordable Care Act directs that the penalty ... be “assessed and collected in the same manner” as a tax. The similarities, he argued, meant that it should be treated like a tax—including its applicability under the AIA. The majority disagreed with the “dissent's linguistic analysis,” noting that the language in the statute otherwise raised distinctions.
Kavanaugh failed to convince his colleagues that the “straightforward chain of logic” meant that they could not hear (and decide) the case. But his reasoning—that the AIA barred the suit—is important. That’s because procedure matters. Kavanaugh didn’t argue that the Affordable Care Act was unconstitutional. He never got that far. He argued instead that the court couldn’t hear the case,
Dissents don’t typically cause a big stir, and this one might have just been a legal footnote except for one thing: The argument that the payment for the mandate was a tax—and not a penalty—became a central argument at SCOTUS when considering whether the Affordable Care Act was constitutional.
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"They're on our left, they're on our right, they're in front of us, they're behind us...they can't get away this time." -- Col. Puller, USMC