1/x Here's the irony about Kavanaugh. In the vast majority of cases, particularly those involving constitutional questions, the standard SCOTUS uses is not "of two possible answers, what is the correct one" but rather "of two possible answers, on which side should it err?"
2/x So when the court uses strict scrutiny to strike down a race-based government decision, it's not because it knows for a fact that's the correct outcome but because it believes that when it comes to race it should err on the side of forbidding these government actions.
3/x I don't agree with the reasoning but that's what the court is doing: it errs on the side of saying no because, in the court's incorrect reading of history, race rather than racism is the problem and, as such, all race conscious decisions are presumptively unconstitutional.
4/x If Kavanaugh gets on the Court, that's what he'll be doing every single term: as between reproductive autonomy and state interest in life, on which side should I err? As between the use of money in politics and public participation on which side should I err?
5/x In other words, when you cut through all the endless debates about what is the legitimate mode of interpreting the constitution, it really comes down to justices deciding, both as a matter of judicial philosophy, and in specific cases, on which side the court should err.
6/x If you apply the same reasoning to Kavanaugh's nomination, then perhaps the question should be, given all that has come out, and given we may never know the complete truth about the nominee, on which side should Congress err in voting on the nomination?
7/7 Or put more plainly, if Congress were to apply a strict scrutiny standard of review to this nomination, on which side should it err?
