July 10, 2018
One can smile and smile and be a villain. Bear that in mind as you consider the nomination of D.C. Circuit Judge Brett Kavanaugh to the U. S. Supreme Court. As soon as his nomination was announced, pundits could be heard praising his “performance,” devoting airtime to how relaxed and at ease Kavanaugh appeared during his remarks. Much is being made of Kavanaugh’s two degrees from Yale and his dozen years on the D.C. Circuit, arguably the most influential appellate court in the country. It is proof of how conditioned we have become to Trump’s practice of appointing incompetent ideologues, that we are relieved when a nominee is conventionally qualified. We must ask ourselves though, what agenda will Kavanaugh’s sterling intellect be put in service of? His record offers ample clues. We know that he has already opined on an issue he is likely to confront early in his tenure. In a 2009 Law Review article, Kavanaugh said that a sitting president should have a “temporary deferral of civil suits and criminal prosecutions and investigations,” (Source: “Brett Kavanaugh Supported Broad Leeway for Presidents Under Investigation,” by Carrie Johnson, NPR.org, 7/10/18). No doubt that article catapulted Kavanaugh to the top of Trump’s list. Kavanaugh is almost certain to swing the Court sharply to the right on other critical issues. His dissent in U.S. Telecom Association v. FCC indicates that like Steve Bannon and the Freedom Caucus, Kavanaugh favors dismantling the administrative state. Kavanaugh argues that the FCC could not mandate net neutrality “because courts must apply a strong presumption that an agency lacks the authority to regulate when it takes a ‘major’ policy action,” (Source: “Who Is Brett Kavanaugh, Trump’s pick to replace Anthony Kennedy?” by Ian Milhiser, Thinkprogress.org, 7/9/18). On the critical issue of a woman’s right to choose, Kavanaugh’s dissent in the recent case of Garza v. Hargan is instructive. In this challenge to the Trump administration’s practice of holding pregnant undocumented minors prisoner to prevent them from obtaining abortions, Kavanaugh argued that it was reasonable to keep them in custody while the government “searched for an ‘immigration sponsor’ despite the fact that the delay could functionally prevent young women from accessing that right (Source: ibid). While Kavanaugh is certain to engage in the Kabuki theater typical of all recent nominees and make noises murmuring about respect for precedent and the impropriety of voicing an opinion on issues that may come before the Court, we should not be fooled. Trump has explicitly stated that he hoped to appoint a judge who would overturn Roe v. Wade. We should take Trump seriously and literally and assume that Kavanaugh fits the bill. We need to understand that this hard right majority is the culmination of forty years of work by conservative lawyers and academics who built institutions like The Federalist Society and The Heritage Foundation to pepper Law School faculties and the federal bench with people who could add intellectual heft to a philosophy of hostility to the rights of women, people of color and LGBTQ people and that was predisposed to favor the interests of big business. It is the result of forty years of focus on state and local elections in order to engineer gerrymandered districts that cement the control of a conservative minority. If we want to wrest control from them, we will need to mirror their organization and focus. None of that means that we should concede this fight.
Even though Republicans have the votes to push this through if they vote as a bloc, we should raise holy hell. Make sure every Democratic Senator, including Red State Dems like Joe Manchin and Heidi Heitkamp, votes no. Let Collins and Murkowski know that we won’t let them hide behind what is sure to be an Oscar worthy performance by Kavanaugh to pretend that they are moderates. Let them feel the wrath of 150 million women who refuse to go back to botched back alley abortions. Let them hear the rage of Americans who understand that “dismantling the administrative state” means prohibiting federal agencies from protecting things like the quality of our food, our water and our air. We know that rendering agencies toothless means reducing 300 million Americans to nothing more than prey of rapacious oligarchs. Do not go gentle into that good night. There is something rotten in the state indeed.
#NoKavanaugh
#NoHandmaidsTale