On July 9th, following a selection process run like a reality TV series, Donald Trump nominated Judge Brett Kavanaugh for the Supreme Court vacancy resulting from Justice Anthony Kennedy’s resignation. The Democratic leadership of the Senate immediately announced its opposition to Kavanaugh and was joined by liberal and progressive groups across the country. Their opposition to Judge Kavanaugh is based on his Appeals Court rulings, his public speaking and published writing.
While it is often said that Judge Kavanaugh would be a firm fifth conservative vote on the Supreme Court, press reports rarely explain how extreme his judicial philosophy is. Kavanaugh’s previous opinions indicate that he would reverse not only Roe v. Wade but the entire line of decisions that give women control over their reproductive life.
Kavanaugh is widely believed to see no constitutional grounds for gay marriage or, indeed, any gay rights. As a judge he has voted to permit states to arbitrarily limit minority voting rights and he is considered a firm vote against the Affordable Care Act. Most radically, Kavanaugh seems to believe that most forms of effective government regulation designed to protect consumers, or the environment are unconstitutional.
Senate Republicans are rushing the confirmation hearings in an effort to skip over his long history as a committed Republican partisan. Though Kavanaugh’s record as a judge will be examined, there is an even larger record covering Judge Kavanaugh’s role working for Kenneth Starr’s Special Counsel investigation of Bill Clinton and advising George W Bush’s administration on, among other things, the use of torture. This record is not yet available to Senators or the public.
Analysis of Kavanaugh’s judicial record demonstrates that he consistently rules in favor of business and employers and against government regulations and agencies. Over the years, on issues ranging from abortion to environmental regulations and gun rights, Kavanaugh emphasized textual limitations in statutes and constitutional interpretations that consistently favor corporations over regulators and the government over those claiming rights violations. In a recent case he said that the Consumer Finance Protection Bureau, the major post-2008 bank failure regulatory legislation, is unconstitutional. There is deep and widespread concern that this judicial philosophy will lead him to strike down the Affordable Care Act.
A final concern is that Judge Kavanaugh has effectively signaled that he will protect the President from prosecution during his term of office. After arguing vigorously for President Clinton’s impeachment in the late 1990s, Kavanaugh made a 180 degree turnabout in 2009 saying that a sitting president should be exempt from criminal investigation, questioning and prosecution. “The indictment and trial of a sitting President … would cripple the federal government,” he wrote, “rendering it unable to function with credibility in either the international or domestic arenas.” Congress, in Kavanaugh’s view, is the only branch of government capable of holding the president criminally accountable.
Call To Action
Call both your Senators regardless of political party. Democrats need to hear your support for standing strong in opposition and Republicans need to hear your anger. Susan Collins has said that voters are not being emotional about this issue. Here’s your chance!
- Join the nationwide protest against Judge Kavanaugh’s nomination on Sunday, August 26. Visit Unite for Justice's website and enter your zip code to find the nearest event to make your voice heard.
- There should be NO confirmation vote before the November election. In 2016 Mitch McConnell declared that he would not even hold hearings on Obama’s nominee to replace Antony Scalia until after the presidential election. The 2018 elections are will be equally revealing about what the American people want.
- There should be NO confirmation vote until we see a complete record of Kavanaugh’s writings from his term as an aide to President Bush. Republicans demanded equivalent evidence in the confirmation process of Elena Kagan.
- In the hearings, Kavanaugh should be required to state unequivocally that he would recuse himself from any and all cases involving investigations of Donald Trump.
- Kavanaugh MUST answer questions on whether Roe v Wade (abortion rights), Obergefell v Hodges (gay marriage), the Affordable Care Act, and, yes, even Brown v Board of Education (separate education is not equal education) were correctly decided and should remain settled law.