Who is Brett Kavanaugh?
A right-wing political operative, a jurist who thinks the president should be above the law, and an opponent of abortion and birth control access.
President Trump has nominated Judge Brett Kavanaugh to replace retiring Justice Kennedy on the Supreme Court. Kavanaugh, a right-wing hardliner who has proven disregard for precedent, is a horrible choice for women and if confirmed, could reshape the Court for the next forty years.
Far from “draining the swamp,” with Kavanaugh’s nomination Trump has brought the swamp to the Supreme Court. Kavanaugh was selected from a list of 25 jurists who were handpicked by the Federalist Society, an organization that mentors young right-wing lawyers and grooms the next generation of judicial leaders to be sympathetic to their values, from corporate interests to ending legal abortion. That also means Kavanaugh meets Trump’s litmus test of being a judge who would overturn Roe v. Wade and gut the Affordable Care Act.
Kavanaugh spent the formative years of his career as a right-wing operative. He participated in the Florida recount as part of the Bush-Cheney 2000 legal team and was a significant player in the Ken Starr investigations, as well as a lead author of the Starr report against President Clinton. Now, Democrats are demanding a release of all documents related to his time serving in the George W. Bush White House, including any role he might have played in the torture memos. After this long political career, Kavanaugh was considered such a partisan that it took 3 years for his nomination to the D.C. Circuit Court of Appeals to be approved by the Senate.
During his time on the bench, Kavanaugh has shown allegiance to the wealthy and the powerful. In case after case, Kavanaugh has ruled against working people, the environment, and individuals seeking to assert their rights. His nomination is a gift to corporations, elite D.C. interest groups, and wealthy donors, not to the American public.
Supports Expanding Presidential Powers
In 2009, Kavanaugh argued that a president should not be subject to civil lawsuits or criminal investigations while in office. Perhaps unsurprisingly, Kavanaugh has suggested that U.S. v. Nixon — the Supreme Court case that forced President Nixon to turn over the Watergate tapes — was wrongly decided. In a 1998 article, Kavanaugh also wrote that a sitting president should have “absolute discretion” about whether and when to appoint a special counsel.
Kavanaugh has argued that the president has absolutely no obligation to enforce a law passed by Congress (such as the ACA), even if the courts have determined it to be constitutional. He would also cripple federal agencies, such as the EPA or Health and Human Services, allowing for the Trump Administration to push their own dangerous agenda with little difficulty. If appointed to the Supreme Court, Kavanaugh would deconstruct the system of checks and balances to create a unitary and unaccountable executive branch.
Opposes Abortion Access
Last year, Kavanaugh gave a speech at the conservative American Enterprise Institute in which he praised former Chief Justice William Rehnquist for “stemming the general tide of free-wheeling judicial creation of unenumerated rights that were not rooted in the nation’s history and tradition,” but noted that Rehnquist, his “first judicial hero,” had been unsuccessful in curtailing these rights in Roe. Other unenumerated rights, of course, include the right to use contraception as well as the right to marriage equality.
In his only abortion case, Kavanaugh issued a decision blocking a 17-year old unaccompanied immigrant being held in a federal detention facility from obtaining an abortion. Jane Doe, who had been abused by her parents in her home country, had already obtained a court order that allowed her to consent to the abortion on her own. Nonetheless, the government refused to permit her to attend any abortion-related appointments. Kavanaugh would have continued to delay Jane Doe’s abortion under the pretense that she needed a sponsor, pushing her pregnancy into the second trimester. Days later, the full D.C. Circuit reversed Kavanaugh’s decision. In his dissent, Kavanaugh claimed that the court had created a right “to obtain immediate abortion on demand,” ignoring that Jane Doe had to jump through numerous hoops to access abortion and that the government had unnecessarily delayed the procedure for weeks.
Could Gut the Affordable Care Act
In a 2011 case upholding the constitutionality of the ACA, Judge Kavanaugh punted by dissenting on the question of whether the court should even hear the case. In another case, Kavanaugh would have forced the D.C. Circuit to rehear a case upholding the constitutionality of the ACA. Kavanaugh has also argued that employers, especially religiously affiliated ones, have the right to deny birth control insurance coverage to their employees.
Rules Against Gun Regulations
Kavanaugh would have played into the hands of the National Rifle Association by striking down a common sense gun law that banned assault weapons and high-capacity magazines in Washington, DC. The law was upheld as constitutional, but in a 52-page dissent, Kavanaugh claimed that there was no meaningful distinction between handguns and assault weapons, and that the right to own a semi-automatic rifle is protected under the Second Amendment.
Protects Corporate Polluters
Kavanaugh has repeatedly sided with corporations and polluters, and ruled against protections for clean air and clean water, degrading the environment and endangering the health and lives of millions. He voted against the Obama administration’s EPA regulations, even once stating that “global warming isn’t a blank check” for emission regulations. In the 2014 White Stallion Energy Center LLC v. EPA case, Kavanaugh argued that “it is unreasonable for EPA to exclude considerations of costs in determining whether it is ‘appropriate’ to impose significant new regulations on electric utilities.” Here, Kavanaugh is blatantly privileging corporate expenses over the health and safety of every American who has no choice but to breath in toxic fumes.
License to Discriminate
Kavanaugh has tried to make it more difficult for federal employees to pursue claims of racial discrimination and retaliation in federal court. In one case, he would have blocked an African-American woman fired from her job from even having her case heard in court, and in another, he would have prevented an African-American FBI agent from pursuing a retaliation claim. In both cases, Kavanaugh was in the minority. He has also upheld voter suppression laws and gerrymandering cases. In a 2015 case, he upheld a South Carolina discriminatory voter ID law that was originally blocked by the Obama Administration because it violated the Voting Rights Act of 1965.
Undermines Workers’ Safety
Kavanaugh has consistently ruled against workers in workplace safety cases and in union disputes. He has also argued that undocumented workers do not have the right to unionize because of their immigration status, regardless of unsafe and inhumane working conditions.
This is only a portion of Kavanaugh’s devastating judicial record. If he gets on the Court and is allowed to set his own precedent, there is so much more at stake.
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