Judge Raymond Kethledge, reportedly a finalist for nomination to the Supreme Court, has come under fire from some conservatives for decisions in which he voted in favor of arguments presented by illegal immigrants. Breitbart is leading that charge.
As I wrote on Friday, it’s normal that if a judge hears enough immigration cases (and Kethledge is said to have heard more than 100 of them), he will occasionally find the illegal immigrant’s arguments more persuasive than the government’s. The government isn’t infallible, even when it’s trying to deport illegal immigrants. It’s also normal that a long-serving judge will have written or signed a few opinions with which one disagrees.
Several conservative legal analysts, including Orin Kerr, have pushed back against criticism of Kethledge’s immigration decisions. See, for example, this defense by one of Kethledge’s former law clerks of the judge’s opinions in cases where he ruled in favor of the illegal immigration.
In response, Breitbart says that “Kethledge’s conservative boosters heavily overlap with ‘Never Trump.’” Kerr, it noted, said he hoped Trump would lose to Hillary Clinton. As for the former law clerk, his piece appeared in National Review. Breitbart reminds us that during the primary season, NR devoted an entire issue to opposing Trump.
Trump’s march to the presidency at times defied logic, but did not repeal it. One cannot refute analysis of a judicial opinion by noting that the analyst was (or is) anti-Trump.
Breitbart understands this. It also understands that Trump does not despise ad hominem arguments. Therefore, it hopes, I think, to sell him the idea that because some of Kethledge’s defenders didn’t support Trump, the judge must be an unsuitable candidate.
Will Trump be impressed by this dumbed-down argument? I doubt it.