Kavanaugh’s job: Protect Trump
The possibility of an extremist takeover of the Supreme Court is no longer just a worrisome future threat. It’s real. It’s here. It could last for decades. And now it has a name: Brett Kavanaugh.
Out of the list of 25 candidates presented to him by the Federalist Society, President Trump’s pick of Kavanaugh was both unorthodox (for Trump) and brilliant. Unorthodox, because Kavanaugh was the most establishment candidate on the list, a George W. Bush Republican and a true Washington insider — just the kind of Republican Trump campaigned against.
At the same time, for Trump, it was a smart pick, because Kavanaugh’s right out of central casting: young, photogenic, attractive family, his daughters’ basketball coach, double Yale degrees, faculty member at Yale, Harvard and Georgetown. He’ll be the toughest of Trump’s possible choices for Democrats to block.
But block they must. Because, no matter how attractive, there’s no doubt that, given the opportunity, Kavanaugh would join Justices Gorsuch, Thomas, Alito and Chief Justice Roberts in reversing many of the hard-fought gains won in the court over the last 50 years, while weaving a protective legal cocoon around Donald Trump.
Among many reasons for opposing Kavanaugh’s nomination to the Supreme Court, three stand out. First, Roe v. Wade, the landmark 1973 decision legalizing abortion. Kavanaugh’s not publicly expressed opposition to Roe v. Wade, and will be careful not to. But, as a Catholic, one can assume he’s anti-abortion. In fact, he recently showed his hand by opposing the right of a 17-year-old immigrant girl detained at the border to seek an abortion. Plus, let’s be honest. He would not have made the Federalist Society’s list of 25 acceptable candidates if he had not at least privately pledged his vote to overturn Roe v. Wade.
The second determinative issue is health care. Having failed to repeal Obamacare in Congress, the Trump administration’s counting on the Supreme Court to gut whatever’s left of the Affordable Care Act, starting with subsidies to low-income Americans and the ban against insurance companies refusing to sell insurance to those with pre-existing conditions. Again, there’s little doubt where Kavanaugh comes down. He’s written several opinions critical of federal agencies for overreaching and, in particular, he authored a 2015 opinion ruling that a provision of the ACA requiring employers to provide contraception as part of their employees’ health plan violated their religious freedom rights.
As important as Roe v. Wade and the ACA are, however, were he confirmed to the court, there’s one other big issue Kavanaugh would face first: Is the president of the United States bound to answer a Justice Department subpoena? In fact — depending on what Robert Mueller does and how President Trump responds — that question may arise this fall, at the same time Kavanaugh’s confirmation hearings are taking place.
And, on that issue, there’s no doubt where Kavanaugh stands. In two law journal articles (1998 and 2009), he wrote that a president is, at least temporarily, above the law. Any president should be exempt from “time-consuming and distracting” lawsuits and investigations which would “ill serve the public interest,” argued Kavanaugh.
It’s the very same case the Trump White House has been making against the Mueller investigation and the possibility of a presidential subpoena. And, if Mueller ever does subpoena Trump to testify, it’s an argument the Supreme Court may ultimately resolve, which may be the number one reason Trump nominated Kavanaugh in the first place.
In addition to those core issues, there’s one other factor which, while not a reason for opposing his nomination, is worth considering: Brett Kavanaugh would give the court the last thing it needs: one more white male. Think about it. Were he confirmed, the court would count only one African American, three women and five white males. Altogether, only two people of color.
There’s nothing illegal about that, but it does mean that for decades to come the highest court in the land will in no way reflect the demographics of the population it’s supposed to serve. That’s important because it will only further erode public trust in the courts. For more and more Americans, a bunch of old, white men don’t speak for them.
But, of course, Donald Trump doesn’t care about diversity. According to Associated Press, of the first 59 people he nominated to the federal bench, 81 percent were male — and 91 percent white. Which proves, once again, that for Donald Trump “Make America Great Again” really means “Make America White Again.”
Bill Press is syndicated by Tribune Content Agency. His email address is: bill@billpress.com.