It’s interesting that finally - after the election of Trump and the arrival of Gorsuch and Kavanaugh - some on the Left are actually asking themselves if the continued existence of Roe was worth getting Trump as president, and whether it has been smart to pin all of the left-wing-activist hopes on the shoulders of the nine robed elders. God bless America, I never thought I'd hear that concerning the "sacrament of abortion".
Ultimately, it's probably less an admission of anything but as Jonah Goldberg often says, it’s that folks will use whatever means is most amenable to their consolidation of power, and thus the Court was a feasible target when there was no conservative legal infrastructure. Now that that's changed, they’re going to look elsewhere.
But what I really loved in the exchange below was an admission that leftish judges are about power, that they have no philosophy other than “Do what thou will” (and one of the hosts unwittingly and ludicrously implied that very thing by saying the Left should hijack the originalist language of the Right and assert that Roe is an originalist position).
Anyhow, the jury is still out on Kavanaugh. He's pretty swampy and gave Roberts the ammo to save Obamacare. But he's better than Kennedy and Barrett would've been a tough confirmation. From the podcast:
DE: This is a real victory for the conservative legal movement. It’s not just a victory for one person, this is something that took more than a generation to build… And that’s right. You look in the early ‘70s and Pres Nixon gets to make a bunch of appointments and a lot of them were disappointing to conservatives… The solution to that is to build a legal/cultural/social movement, the Federalist society and various movements, that advances a larger vision of the law, and to create a new way of thinking about the law, a new professional identity for conservative lawyers.I wonder if there's a parallel to Catholicism versus Protestantism, that with Catholicism you have a structured way of thinking about the nature of authority, that is easier to do compared to the ecumenicism of "do what thou wilt" Protestantism, the latter not particularly intellectually attractive. As De Tocqueville wrote:
IS: You know it’s quite an achievement, it really is. The success was not guaranteed. It’s genuinely impressive.
DE: And it made me really think that the Left has to counter this, and what the Left has been offering really hasn’t been a great product. The Left doesn’t have a theory, never articulated a particularly clear theory of what judges should be doing and what their method of interpretation is…Ultimately the thing that is most important is having the power in getting to make the appointments to the Court, but on the margins I think it would be helpful for someone to articulate a clear vision…
IS: The problem is on the one hand [the Federalist Society] you’ve got this nice crisp set of ways of thinking about the law, that are, like, very structured and formal and pretty easy to do for the first time, and on the other hand you have a kind of “do what thou wilt” all-things-considered ecumenicism on the Left, which is just not intellectually attractive and is also hard to work with.
Religious powers not radiating from a common centre are naturally repugnant to [the minds of men living in democratic ages]...One of the most ordinary weaknesses of the human intellect is to seek to reconcile contrary principles, and to purchase peace at the expense of logic. Thus there have ever been, and will ever be, men who, after having submitted some portion of their religious belief to the principle of authority, will seek to exempt several other parts of their faith from its influence, and to keep their minds floating at random between liberty and obedience.I think folks like Anthony Kennedy and Notorious RBG have long ago purchased peace at the expense of logic.