Settled Law 2018

Today, The Weekly Bystander features a guest post  by Rudy Costello, a friend who has been a lifelong student of American history and politics. His article on the nomination of Judge Brett Kavanaugh to fill the vacant seat on the Supreme Court first appeared this morning as a letter to the Connecticut Post.

Fred Scott

   With President Trump's announcement of his Supreme Court nominee the stage is set for some real political theater. The leading actors will be some familiar names: Diane Feinstein, Dick Durbin,Richard Blumenthal and Patrick Leahy, the leading liberals on the Senate Judiciary Committee .  Iin supporting roles we will see Corey Booker and the flamboyant Kamala Harris both of whom will be auditioning for bigger roles in 2020.

   With the likes of these characters what can we expect? Hysteria about conservative attempts to overturn Roe v. Wade ? A "high-tech lynching" [in the words of then nominee Clarence Thomas during his nomination hearings], or a Democrat staging of a three-ring circus? On the other hand there is Senator Susan Collins of Maine, the lonely Republican in the field of deep blue New England.While not on the judiciary committee she has voiced her pro choice concerns about "settled law'and judicial precedent as it pertains to a nominee who might show any hostility to Roe v. Wade.

   It should be noted that historically some settled or established law resulting from Supreme Court decisions have been overturned by one method or another.Two landmark cases stand out.One was the infamouus case of Dred Scott v. Sanford in 1857 and Plessy v. Ferguson in 1896.The former ruled that Americans of African descent were not citizens and could not sue in federal court.It also stated that Congress could not prohibit slavery in the territories of the United States. That judicial precedent was overturned by the passage of the 13th and 14th amendments to the Constitution.

  In Plessy the Supreme Court advanced the " separate but equal doctrne" which in effect legalized "Jim Crow" state segregation laws. This case became the precedent for over fifty years of settled law throughout the South and many parts of the North as well. For those senators concerned about established law and judicial precedent today, how would they have approached a nominnee during the 1950's who wanted to overturn Plessy v. Ferguson?

 Well, it was overturned. In 1954 in Brown v. Board of Education the Supreme Court struck down the "separate but equal' precedent as it applied to segregation in public schools.That Court decision led to the passage of the civil rights legislation of the late 50's and the historic Civil Rights Act of 1964.

  Cleary, this idea of settled law is a ruse as it pertains to Roe v. Wade. It's a political ploy to ramp up the Democrat liberal base, demonize those who are pro-life, and use judicial nominations as a way to promote an idealogical agenda.

  Decisions by the Supreme Court are settled law for the time being. How better off are we as a nation that the Dred Scott and Plessy decisions are now just unfortunate footnotes to our history. Roe may be overturned some day; however, if and when will depend on the merits of a case brought before the Court. Until then no prospective judicial nominee can force the issue.

 There are issues besides abortion that are just as important as the Senate deliberates on this nominee.Nevertheless, tune in on the committee hearings; it most likely will be political theater at its worst directed by Chuck Schemer.

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