San Francisco Chronicle

Kavanaugh would jeopardize 50 years of civil rights progress

- By Bobbie Stein Bobbie Stein is a Bay Area criminal defense and civil rights lawyer and a member of the Board of Governors of California Attorneys for Criminal Justice.

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principles of the Constituti­on and understand­s that the contempora­ry needs of society outweigh an adherence to outdated doctrine.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.

 ?? Erin Schaff / New York Times ?? Supreme Court nominee Brett Kavanaugh would tip the court’s tenuous balance to the right.
Erin Schaff / New York Times Supreme Court nominee Brett Kavanaugh would tip the court’s tenuous balance to the right.

Newspapers in English

Newspapers from United States