Kavanaugh would jeopardize 50 years of civil rights progress
Justice Anthony Kennedy’s retirement from the U.S. Supreme Court presents President Trump with a rare opportunity to replace his swing vote on the nine member court with a steadfast conservative one. Trump’s pick is D.C. Court of Appeals Judge Brett Kavanaugh. With his Ivy League pedigree and his “good guy” reputation, Kavanaugh seems, on the surface, like a safe bet for Trump. Vetted and approved by the conservative Federalist Society, which has provided the Trump administration with nearly all its judicial nominees to date, he likely will be the decisive vote in undermining civil liberties and civil rights and will drastically tip the tenuous balance of the court to the right.
In legal and political circles, Kavanaugh is being compared with Ronald Reagan’s failed 1987 Supreme Court nominee, Robert Bork. Bork, like Kavanaugh, held “originalist” views of constitutional law, predicated on the perceived original intent of the founders. Such an ideology inevitably leads to the exclusion and subjugation of women and minorities without due process of law. Originalism is a code word for conservatism and conflicts with the idea that the Constitution is a living document that recognizes liberty and personal dignity as animating principles of the Constitution and understands that the contemporary needs of society outweigh an adherence to outdated doctrine.
According to Gallup, Kavanaugh begins his quest for confirmation with the slimmest margin in favor of confirmation than for any nominee Gallup has measured since Bork’s nomination. As a D.C. circuit court judge, Kavanaugh has consistently ruled against environmental protections, opposed efforts to fight climate change, and has handed down decisions against protections for clean water.
He has called the Federal Communications Commission’s net neutrality order an “unlawful” First Amendment violation.
Hostile to the rights of the accused, Kavanaugh applauds “his first judicial hero,” the late former Chief Justice William Rehnquist’s pursuit of expanding exceptions to the exclusionary rule — a rule that is meant to keep illegally obtained evidence out of court. In the area of religion, he again invokes Rehnquist’s ghost suggesting that he may be open to widening the flow of public funding to religious schools and reversing the Supreme Court’s “erecting a strict wall of separation between church and state.”
When it comes to affirmative action, Kavanaugh’s record leaves little room for surprise. As a lawyer at the high-grossing, international law firm, Kirkland & Ellis, he teamed up with then-lawyer Bork and the Center for Equal Opportunity, a conservative think tank that opposes racebased affirmative action in college admissions, to write an anti-affirmative action brief in an unusual Hawaiian voting rule case.
Neither can Kavanaugh’s views on abortion be a surprise. Trump has made clear his intention to put only justices on the Supreme Court that pass his litmus test of overturning Roe vs. Wade. In a 2015 dissent, Kavanaugh argued that the Obamacare mandate for contraception coverage infringed on the rights of religious organizations. He famously dissented from a decision last fall that permitted an undocumented immigrant teen in federal custody to have an abortion. Kavanaugh felt that the judges in the majority had created a new right for undocumented immigrant minors in U.S. government custody “to obtain immediate abortion on demand.” He emphasized instead the government’s “permissible interests” in “favoring fetal life” and “refraining from facilitating abortion.”
While Kavanaugh’s known record exposing his extreme right-wing views on a range of matters gives Trump ample reason for his nomination, perhaps the greatest benefit that Trump sees in Kavanaugh’s confirmation is personal. With the Mueller investigation looming, Trump, no doubt, sees Kavanaugh as his protector. Kavanaugh has indicated that he does not believe sitting presidents should be indicted and has argued for a president’s power to remove a special counsel at will. He has candidly questioned the Supreme Court ruling that ordered President Richard Nixon to turn over the Watergate tapes.
What we know about Kavanaugh’s record makes him unsuitable for a lifetime appointment to the Supreme Court. While Senate Majority Leader Mitch McConnell calls attacks on Kavanaugh an “extreme” distortion of his record, the cold, hard facts show that the only thing “extreme” in the equation is Kavanaugh’s views. Kavanaugh’s ideological leanings should give anyone who is concerned about the court’s future and its role in preserving the hard-fought evolution of civil rights gained in the past 50 years, pause. This is a confirmation battle of significant proportion. Kavanaugh’s confirmation will affect the daily lives of Americans for generations to come.