Demagogue Donald’s Supreme Court Pick #2 Brett Kavanaugh—Welcome to the Judicial/Political Dark Ages July 11, 2018
“Dark Ages.” In the best-selling mystery thriller, “The President Is Missing,” co-authored by former President Bill Clinton and James Patterson, a group of Saudi extremists, aided by Russians, and a White House traitor, attempt to compromise via a computer virus every device connected to the internet in the U.S. If that plan had worked (“spoiler alert,” it didn’t), the U.S. would have been thrown into utter chaos. The name of this diabolical program was fittingly called “Dark Ages,” since its success would have thrown the U.S. into an era of anarchy similar to the one that occurred after the destruction of the Roman Empire. This book is a work of fiction. In our real world, however, on 7/09/2018, Demagogue Donald nominated Judge Brett Kavanaugh to replace retiring Supreme Court Justice Anthony Kennedy. Should Kavanaugh be confirmed by the U.S. Senate to a seat on SCOTUS (the Supreme Court of the United States) our country will be subject to a true judicial/political Dark Age that could last for about 40 years, long after Trump leaves office.
Kennedy, nominated to SCOTUS by Pres. Ronald Reagan in 11/1987 and confirmed by the Senate in 2/1988 (google.com), was usually part of the conservative faction on the High Court. He joined that bloc in the “Bush v. Gore” case which gave W Bush the White House in 2000 by cutting off the FL presidential recount. In the 5-4 1/2010 “Citizens United” case, Kennedy wrote the opinion that opened the floodgates to nearly unlimited political spending by gazillionaire donors. However, Kennedy, in 1992, was one of the Justices in the “Planned Parenthood. v. Casey” decision that upheld the 1973 “Roe v. Wade” right to an abortion, a pro-choice victory. Kennedy, of course, wrote the 2015 “Obergefell v. Hodges” decision legalizing same sex marriage and was generally strong on LGBTQ issues. Although Kennedy never found a case where unconstitutional political gerrymandering had occurred, he joined Justice Ginsburg’s 6/29/2015 5-4 decision upholding the right of voters in AZ and elsewhere to create independent redistricting commissions. These commissions would remove state legislators’ bias from the congressional redistricting process, a major way to attack political gerrymandering. Even though Kennedy did not vote to uphold Obamacare in 2012, when related health care issues came before the court, he accepted the 2012 ruling. Even when Kennedy joined the conservative bloc, he often kept the more radical faction of Scalia, Alito, Thomas, and, now, Gorsuch from adopting more extreme positions.
Again, I repeat, ELECTIONS COUNT. Those Democrats who stayed home or voted for dead end third- party candidates are getting, along with the rest of the nation, their second SCOTUS “reward” in the person of Kavanaugh. Meet Donald’s SCOTUS pick #2, Brett Kavanaugh.
D.C. native Brett Michael Kavanaugh (53) was raised in Bethesda, MD. Catholic Kavanaugh went to Georgetown Prep School, the same parochial secondary school attended by Neil Gorsuch. He received his 1987 undergraduate degree from Yale and graduated Yale Law in 1990. Kavanaugh clerked for Supreme Court Justice Anthony Kennedy alongside Neil Gorsuch, the fellow who took the late Justice Scalia’s seat in 2017 as Trump’s first SCOTUS selection (latimes.com, Savage, 6/28/18, Ferner, 7/28/18, huffingtonpost.com).
Kavanaugh has been a long-rising star in conservative circles. He dove head first into right-wing GOP politics when he joined the multipronged investigation, read witch hunt, into President Bill and Hillary Clinton led by Independent Counsel Kenn Starr in the 1990’s. Kavanaugh co-wrote a portion of the final Starr report that laid out 11 possible grounds for Bill Clinton’s impeachment. Kavanaugh also led the inquiry into the death of Clinton White House counsel Vince Foster whose suicide became the subject of numerous right-wing conspiracy theories that Trump himself peddled (huffingtonpost.com, Ferner, nytimes.com, Landler& Apuzzo, 7/05/18). In 2000, two years after the 1998 Starr report was issued, Kavanaugh joined W Bush’s team in the fight over the FL presidential election recount. When the Rehnquist SCOTUS decided the “Bush v. Gore” case in W’s favor, Kavanaugh was rewarded with several positions in W’s White House. From 2001-2003, Kavanaugh was Senior Associate Counsel and Associate Counsel to the President where he worked on numerous ethical, constitutional, and legal issues. In 2003, he served as Assistant to the President and Staff Secretary where he was responsible for coordinating all documents to and from the president. While in the White House, he met his future wife who was then serving as W’s Personal Secretary. In 2003, W Bush nominated him to the D.C. U.S. Court of Appeals, often a stepping stone to SCOTUS. Democrats initially blocked his confirmation. Sen. Chuck Schumer (D-NY), now Dem. Minority Leader, aptly stated, “The bottom line seems simple: This nomination appears to be judicial payment for political services rendered (huffingtonpost.com, Ferner, 7/05/18).” Schumer also called Kavanaugh a “very bright foot soldier” who has been in the middle of every partisan legal battle. After a three-year Senate battle, Kavanaugh won confirmation to the D.C. Circuit Court in 2006 where he has served for the last 12 years (latimes.com, Savage, 6/28/18, Ferner, huffingtonpost.com, 7/05/18).
Since his D.C. Circuit appointment, Kavanaugh has written 300 opinions. According to University of Louisville law professor Justin Walker, who clerked for Kavanaugh on the D.C. Circuit and Kennedy on SCOTUS, “He (Kavanaugh) is much more conservative in his approach than Justice Kennedy. There is no guesswork with Judge Kavanaugh. He is extremely predictable (latimes.com, Savage, 6/28/18).” Kavanaugh was enthusiastically backed for Kennedy’s SCOTUS seat by Trump’s White House counsel Don McGahn (nytimes.com, 7/09/18, Landler & Haberman, 7/09/18). McGahn has been on a “mission” from the get-go to reshape SCOTUS and the lower federal courts in the Trumpian/GOP business and social conservative extreme right image (cnn.com de Vogue, Supreme Ct. Reporter, 6/28/18). Kavanaugh was on the list of ultra-conservative nominees created by the right-wing judicial Federalist Society and conservative Heritage Foundation from which Trump repeatedly promised to select his SCOTUS picks during his 2016 campaign (See latimes.com, Bierman, 7/03/18, Mayer, “Dark Money,”).
Kavanaugh’s past rulings on the D.C. Circuit will be “prologue” to his future votes. According to Amanda Hollis-Brusky, the author of a book on the Federalist Society, “Ideas With Consequences,” there will be “no surprises” with a Kavanaugh on the SCOTUS bench (See Bierman, latimes.com, 7/03/18). Here’s a look at Kavanaugh’s judicial record.
On the D.C. Circuit, Kavanaugh is an outspoken champion of the unitary executive theory, which allows for effectively unchecked presidential power over the executive branch. This is a radical theory also advocated by SCOTUS Justice Alito (Seehuffingtonpost.com, Meyer, acslaw.org, 1/23/06). Kavanaugh had no problem hounding sitting President Bill Clinton on Kenn Starr’s staff. However, since working for GOP President W Bush, Kavanaugh has flipped 360 degrees. In a 2009 MN Law Review article, he argued that Presidents should be “exempt from time consuming and distracting lawsuits and investigations which would ill serve the public interest, especially in times of financial and national security crisis (Wash. Post, Kranish & Marimow, 6/29/18).” In 1998, Kavanaugh wrote that it is debatable “whether the Constitution allows the indictment of a sitting President.” The issue of whether special counsel Robert Mueller should even be allowed to investigate Donald while in office, this indictment question, and whether Trump could pardon himself could come before SCOTUS. SCOTUS, unlike other courts, has no conflict of interest rules and Kavanaugh would not have to recuse himself from being decisive vote # 5 on these key issues (see huffingtonpost.com, Ferner & Bassett,7/09/18). Trump campaigned hard on appointing SCOTUS judges to overrule “Roe v. Wade,” the social right’s major obsession. In 2017, Kavanaugh wrote a dissent not to allow an undocumented teenager to seek an abortion while in federal custody at the U.S. border in TX. He argued that judges in the majority had created a new right for undocumented immigrant minors in U.S. custody “to obtain ‘immediate abortion on demand.’” Kavanaugh emphasized the government’s “permissible interests” in “favoring fetal life” and “refraining from facilitating abortion.” “Abortion on demand” and “favoring fetal life” are sound-barrier breaking dog whistles used by anti-abortion activists who want to overturn “Roe (huffingtonposts.com, Ferner & Bassett).” Kavanaugh, in this case, indicates he is not too concerned with the rights of undocumented immigrants, a very big issue with the cruel border separations that SCOTUS may also get involved with.
In 2011, Kavanaugh dissented from a majority opinion upholding a D.C. ban of semi-automatic rifles. He argued that semi-automatics “have not been traditionally banned and are in common use by law-abiding citizens.” He compared possessing semi-automatic rifles to owning handguns, which was allowed by SCOTUS in the 2008 “Heller” case (cnn.com, Foran & Biskupic, 7/09/18). Kavanaugh’s hundreds of opinions have been “almost entirely in favor of big business, employers in employment disputes, and against criminal defendants.” He has been a vocal critic of Obama’s environmental protection rules (Felman, Empirical SCOTUS blog). Kavanaugh has a broad skepticism of agency power. He dissented from a case upholding the Consumer Financial Protection Bureau, calling it part of a “headless fourth branch of government with enormous economic and social power (cnn.com, Foran & Biskupic).” Yes, Kavanaugh, a friend of Chief Justice Roberts, did uphold Obama’s health care law, not as a regulation of interstate commerce, but as a permissible tax law. He saw the individual mandate that people must buy insurance as a legitimate tax power, which Roberts used to uphold that act (“Politico,” Gerstein & Haberkorn, 6/28/12). However, the passage of the 1% tax cut legislation in 12/2017 removed the individual mandate tax. Challenges to the health care act, including removing protection from pre-existing conditions, are heading toward SCOTUS. With the tax rationale now removed from the Affordable Care Act, a 5-4 majority with Kavanaugh could easily repeal Obamacare. You get the idea.
Senator Kamala Harris (D-CA) strongly opposes Kavanaugh. She aptly called all of Trump’s potential SCOTUS picks from the Federalist list “complete non-starters (“The Hill,” Greenwood, 6/27/18).” Democratic Leader Sen. Chuck Schumer stated he will fight this nomination with “everything he’s got.” With Sen. McCain gravely ill, GOPers have a 50-49 majority. Democrats need two GOP votes to keep VP Pence from breaking a tie. Remember, there is no filibuster in SCOTUS confirmations since GOP leader Mitch McConnell abolished it when Gorsuch was confirmed in 2017. However, several Democratic Senators in states that Trump handily carried such as W. VA’s Joe Manchin, ND’s Heidi Heitkamp, and IN’s Joe Donnelly are facing tough re-election races with many anti-choice people aligned against them. Schumer is arguing that in addition to the issue of pro-choice, saving health care reform, especially pre-existing conditions, is a reason to oppose Kavanaugh. Preserving health care will play better for Manchin and fellow “Red State” Democratic Senators. Manchin, in fact, has indicated that that matter is crucial to him. GOP “so-called” moderates Susan Collins (R-ME) and Lisa Murkowski (R-AK) who saved health care and are pro-choice, must be persuaded to oppose Kavanaugh, but in the end, who really knows what they will do? They put party over country in the 1% tax cut fight that destroyed the health care mandate. A new Democratic organization, Demand Justice, is spending over $5 million in advertising, including in ME and AK (NY Times, Stolberg & Martin, 7/10/18), but right-to-life and Koch groups are using their millions too. Even if we lose this fight, and the odds favor the GOP here, we must win the ultimate battle—getting out in droves to take back the House and Senate in 2018. Our motto—"No more Gorsuches and Kavanaughs!”
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