Accusing Brett Kavanaugh of judicial activism

Originally published in the Washington Times on September 9, 2018.

Susan Brooks Thistlewaite, professor of theology and former president of Chicago Theological Seminary, penned an op-ed for Patheos this past week excoriating the Supreme Court nominee, Judge Brett Kavanaugh as “a pre-selected political ideologue” of, what she considers to be, the myopic and agenda-drivenright.

In her diatribe against Judge Kavanaugh, Ms. Thislewaite went to great lengths to remind her readers of the dangers of all aspirants to the bench who claim to have “no agenda” and who “take a minimalist approach” to constitutional interpretation.

“I contrast [Brett Kavanaugh’s] view of the Constitution with that of Dr. Martin Luther King, Jr.,” she said. “Few Americans have understood the promise inherent in the Constitution better than Dr. King In his ‘I have a Dream’ speech [he] was able, as few before or since, to reach into our constitutional past and proclaim the deep sense of the words “

Ms. Thislewaite continued: “What King understood about the Constitution, and in my view conservatives [such as Kavanaugh] do not, is that the Constitution is broad and inclusive living document “

Citing her objections to Judge Kavanaugh as being the same concerns she had of Justice John Roberts during his confirmation process, she concludes:

“To me, Roberts’s predilection for conservative judicial activism was obvious from the time of the hearings on his appointment. It should have been obvious to anybody The same is true of Kavanaugh That, in itself, should be enough to deny him an appointment to the Supreme Court. I was right in 2005 about what the Supreme Court would be like under the leadership of John Roberts, and I’m right about Kavanaugh. I know it and I hope you do as well.”

And, thus, Ms. Thistlewaite steps to the front of the progressive parade of those who have zero awareness of their own self-refuting duplicity and hypocrisy.

How so?

What we see in the good professor’s screed is just another example of an ideologue calling anyone who disagrees with her an ideologue; someone with an agenda lamenting those she believes “have an agenda”; the pot calling the kettle black; someone who apparently is clueless to the fact that every time she points a finger of accusation at others she has three pointed back at herself; a professor of theology who, it seems, is curiously unaware of the very words of Christ: “Physician, heal thyself.”

It never fails to amaze — When leftists argue against what they decry as “activism,” they can’t seem to stop themselves from betraying their own activism. Every time they talk about “living documents” they shine a light on their own dead ideas.

Every time they cry “wolf” about a conservative’s “appetite for power” they expose their own insatiable, tooth-and-fanged appetite for power. Again and again they appear to be oblivious to the sound of the branch upon which they are sitting creaking and cracking as they frantically saw away.

And we should not miss the biting irony of Ms. Thistlewaite citing the Rev. Martin Luther King Jr. to support her claims. Dr. King’s own words are the best rebuttal to the chronological snobbery endemic in this woman’s contention that our nation’s seminal documents are little more than the subjective shifting sands of a “living document” that ebbs and flows with the opinions and tastes of culture.

In his “Letter from the Birmingham jail” Martin Luther King says: “One may well ask: ‘How can you advocate breaking some laws and obeying others?’ The answer lies in the fact that there are two types of laws: just and unjust How does one determine whether a law is just or unjust? A just law is [one] that squares with the moral law or the law of God. An unjust law is a code that is out of harmony with the moral law. To put it in the terms of St. Thomas Aquinas: An unjust law is a human law that is not rooted in eternal law and natural law.”

Martin Luther King Jr. clearly understood what C.S. Lewis told us a generation earlier: You can do no measuring without a measuring rod outside of those things being measured. Both King and Lewis are telling us the same thing. A static and permanent treatise, as opposed to a fluid and “living document” is necessary to a free and just society.

Without a standard more immutable and enduring than the opinions of those in power, there will never be justice but rather just the comical posturing of professors and politicians who fancy themselves to be our judge.

The progressive left’s argument to redefine our Constitution as a “living document” is arrogant. It rests on the premise that they know better than even the author what the original text means. It also suggests they are the “smarter ones” who know best what is good for all of the rest of us stupid conservative rubes who simply want to “call balls and strikes” within the boundaries of what our Constitution actually says.

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