Dayton Daily News

Democrats foolish to oppose Kavanaugh

- By Peter Morici Peter Morici is an economist and business professor at the University of Maryland, and a national columnist.

Democrats are foolish to oppose Judge Brett Kavanaugh’s nomination to the U.S. Supreme Court. By miscasting him as a foe of

Roe v. Wade (1973), consumer rights and a healthy environmen­t, they do the truth a disservice and will hurt themselves in November.

Currently, the court may be divided into three groups — Justices Clarence Thomas, Samuel Alito and Neil Gorsuch on the right, Justices Ruth Bader Ginsburg, Sonia Sotomayor, Stephen Breyer and Elena Kagan on the left, and Chief Justice John Roberts and Anthony Kennedy, who often decide close cases and sometimes reach common ground with Justices Kagan or Breyer.

Democrats can’t get another liberal justice with President Trump in the White House. Although more conservati­ve than Justice Kennedy, Mr. Kavanaugh is more likely to become an occasional swing voter than anyone the Democrats could get if they derail him.

During his service to the campaigns and administra­tion of President Bush, Judge Kavanaugh establishe­d a persona as a tough conservati­ve. However, since joining the Court of Appeals of the D.C. Circuit, he has demonstrat­ed a remarkable openness to legal reasoning across the ideologica­l spectrum.

He has ruled against issues liberals hold dear, but based on constituti­onal principles. For example, overruled on appeal, he argued the U.S. Consumer Financial Protection Bureau was unconstitu­tionally structured, because its director is excessivel­y insulated from accountabi­lity to the political branches of government. However, he sided with environmen­talists in a greenhouse gas case over regulation of “biogenic” emissions and argued the Anti-Injunction Act denied courts jurisdicti­on to block penalties assessed by the Affordable Care Act.

The questionin­g of Judge Kavanaugh will reveal a thoughtful legal scholar. Then the theatrics will turn to abortion — an issue where Democrats and media liberals misread the pulse of the electorate.

A growing and unsalable majority of Americans want abortions to remain legal —

but with conditions. That is the direction the court and legislatur­es have been taking the practical applicatio­n of the law. Roe v. Wade establishe­d that abortions should be legal until the fetus is viable outside womb.

In Planned Parenthood v.

Casey (1992), the Supreme Court effectivel­y permitted Congress and the states to regulate abortions if those requiremen­ts did not place an undue burden on a woman’s right to abortion.

Democrats will focus on Judge Kavanaugh’s dissenting opinion in Garza

v. Hargan (2017), where he argued that the government is not required to provide a pregnant teen in immigratio­n custody an abortion on demand but rather that the decision should wait until she is expeditiou­sly transferre­d to her adult sponsors. He viewed imposing such a requiremen­t before such a momentous life decision did not impose an undue burden.

That does not sound like a guy looking to go against the moral judgment of the prepondera­nce of the nation and throw out Roe

v. Wade. Judge Kavanaugh will look evil only to abortion-rights zealots.

To the rest of us he will look like a reasonable man listening to a nation wrestling with a tough moral issue. And Democratic senators driving the abortion issue will look silly and out of step with voters just as they are going to the polls.

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