Last night, President Trump nominated Judge Brett Kavanaugh to replace Justice Kennedy on the Supreme Court. Kennedy was a swing-vote on a number of important social issues, which led some to classify him as a moderate. But Kavanaugh is definitely no moderate. In fact, he is an extreme conservative who has proven disregard for precedent. If confirmed, he would reshape the Court for the next forty years. We cannot let that happen.
“He’s not supposed to be a rubber stamp”
The first thing you need to know about Brett Kavanaugh is that he spent the formative years of his career as a right-wing operative. In fact, after serving in President George W. Bush’s White House, he was considered such a partisan that it took 3 years for his nomination to the DC Circuit Court of Appeals to be approved by the Senate.
During that three year period, the American Bar Association made the unusual decision to downgrade Kavanaugh’s qualification rating after interviewing judges and colleagues who referred to him as “less than adequate,” “sanctimonious,” “insulated,” and “immovable and very stubborn.” In 2006, Senator Patrick Leahy of Vermont protested Kavanaugh’s Circuit Court nomination on the Senate floor, citing that Kavanaugh had “spoke of making rulings and whatnot that would make President Bush proud. Well this is an independent branch of government, he’s not supposed to make any president, Republican or Democrat, proud. He’s not supposed to be a rubber stamp for anybody.”
Is the president above the law?
This leads us to the second thing you should know about Brett Kavanaugh and the main reason President Trump found him to be such a tempting nominee. In 2009, Kavanaugh argued that a president should not be subject to a criminal investigation. He wrote that “Congress might consider a law exempting a President—while in office—from criminal prosecution and investigation, including from questioning by criminal prosecutors or defense counsel” because it would be detrimental to “his or her responsibilities to the people.”
This statement must have been music to President Trump’s ears. The probe into foreign interference in the 2016 election has so far led to the criminal indictment of at least five top aides associated with the Trump campaign, and at least four have pleaded guilty, including Michael Flynn, the former national security adviser, and Rick Gates, the former deputy campaign chairman.
As the Mueller investigation, as well as the New York state investigation, closes in around him, the Supreme Court will be required to weigh in on a number of important, never-before answered constitutional questions regarding the president’s culpability: Can the President fire the special counsel? Can a sitting U.S. President be called to testify in a criminal case? Does the President have the legal authority to pardon himself? Kavanaugh has already told us what direction he leans in.
Kavanaugh has also argued that the president has absolutely no obligation to enforce a law passed by Congress, even if they courts have determined it to be constitutional.
Undermining Birth Control and Abortion Access
But the reason Kavanaugh was chosen as the nominee, the reason he was even part of the 25-person list produced by the anti-reproductive rights, pro-corporation Federalist Society, is because he passed President Trump’s litmus test of being a Justice who would overturn Roe v. Wade, criminalizing abortion in over half the country. That means states could prosecute and imprison doctors and nurses who perform abortions, as well as women who have them. And that’s the third thing you need to know about Brett Kavanaugh.
In the recent case of Garza v. Hargan, Kavanaugh wanted to make it impossible for a 17-year old pregnant migrant to access an abortion. Even though she had already jumped through all the state-required hoops, Kavanaugh would have forced her to wait weeks longer for a resolution, which would have pushed her into the second trimester. The majority of the DC Circuit Court of Appeals eventually ruled in her favor.
In the Garza case, Kavanaugh attempted to create a barrier that was not there before, outraged that an undocumented minor would be trusted to make decisions about her body in compliance with state law. This record of rubber-stamping abortion restrictions and barriers is a dark sign as states wage lawsuits to institute everything from 8 week bans to outlawing a common abortion procedure performed after 11 weeks.
His stance against women’s body autonomy is not limited to abortion. In another dissent, Kavanaugh argued that employers, especially religiously affiliated ones, have a right to deny birth control insurance coverage to their employees. He also dissented from a ruling that said the Affordable Care Act is constitutional, arguing that the President is not required to enforce the ACA, or virtually any law, if he so chooses. The fact that there is currently a lawsuit pending on the constitutionality of the ACA makes this record dangerous for the future of healthcare in America.
These are just some of the reasons that Brett Kavanaugh is an extremely controversial Supreme Court nominee. This is the fight of our lives; we have to stop him.