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Law & the Courts

Kaine Can’t Quit Distorting Gorsuch

The other day I explained that Senator Kaine, in claiming that Judge Gorsuch had criticized women who use contraception, didn’t have a leg to stand on. Apparently he is willing to stand on his head, if that’s what it takes to keep up his distortion. At CNN, he maintains that Gorsuch is a threat to Griswold v. Connecticut, the 1965 precedent in which the Supreme Court said that the Constitution protects a right to contraception.

There’s a reason this argument hasn’t been a major part of the liberal case against Gorsuch: It’s ridiculous. Not even the left-wing law professors you would expect to use low-quality arguments against a conservative nominee have been willing to accuse him of posing a risk to Griswold. If there were even a tiny shred of a plausible argument for that accusation, they’d be making it. But even this blogpost by a left-wing legal activist–whose work centers on “reproductive rights”!–doesn’t say that Gorsuch’s judicial opinions demonstrate an anti-Griswold agenda. Kaine is out there by himself, and it’s not because his fine legal mind has picked up on something no one else has.

During his confirmation hearings, Gorsuch told Senator Blumenthal that Griswold has great weight as a precedent and also said, “I cannot imagine a state actually legislating in this area” and “I cannot imagine the Supreme Court taking someone wishing to challenge that precedent seriously.” Senator Kaine, naturally, doesn’t mention these quotes.

Once again, Kaine thoroughly botches the discussion of the Hobby Lobby case, where Gorsuch supposedly condemned women for using contraception. In order:

1) Kaine says that Gorsuch “stretched” to find that the Religious Freedom Restoration Act protected Hobby Lobby’s owners as well as the company itself. He doesn’t mention that three other judges on the circuit, including an Obama appointee, reached the same conclusion as Gorsuch. Raise your hands if you think Obama appointed an anti-contraception extremist to the federal bench.

2) Kaine says that Gorsuch called it “wrongdoing” for female employees of Hobby Lobby to want “to make their own choices about using contraception.” No, he didn’t. He said that “All of us must answer for ourselves whether and to what degree we are willing to be involved in the wrongdoing of others” before explaining that the owners of Hobby Lobby consider the use of certain contraceptives to be wrongdoing and their provision of insurance that covers those contraceptives to be an unacceptable degree of involvement in that wrongdoing. None of the judges who voted against Gorsuch’s position took issue with these words of his, as they surely would have done if they meant what Kaine pretends they mean.

3) Kaine writes, “Moral questions of complicity in others’ behavior had nothing to do with the legal question in this case. The only legal issue was whether the owner’s beliefs about contraception conflicted with the ACA. So Judge Gorsuch’s decision to inject his own editorial comment about women’s ‘wrongdoing’ was an insulting characterization of a personal choice protected by the law.”

Kaine misstates the legal issue in the case. Everyone on all sides of the case understood that the owners’ beliefs about some forms of contraception “conflicted” with regulations that were issued pursuant to the Affordable Care Act: The regulations required the owners to provide coverage that included contraceptives to which they objected. The case turned on whether the law protected Hobby Lobby or its owners in acting on their beliefs about what constitutes unacceptable complicity with something they oppose on moral grounds. The Supreme Court said so itself.

4) Kaine writes, “His two uses of the phrase ‘all of us’ also suggest that he was making a point far broader than what the parties to the case had presented to him.” Actually, they suggest that he was discussing the general principle that he thought should govern the case: that the religious-freedom law protects religiously-grounded moral views about what constitutes unacceptable complicity in wrongdoing, regardless of the content of those views. “All of us,” he said, have such views, and then he discussed the specific views of Hobby Lobby’s owners.

It is possible, I suppose, to review Kaine’s accusations and then defend either his character or his intelligence. But not both.

Ramesh Ponnuru is a senior editor for National Review, a columnist for Bloomberg Opinion, a visiting fellow at the American Enterprise Institute, and a senior fellow at the National Review Institute.


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