By Clare Cannon
Brett Kavanaugh’s confirmation got off to a bit of a rocky start Tuesday. Dozens were arrested & hauled out of the Senate Judiciary Cmte. room & the Democrats did their best to delay the inevitable, Kavanaugh’s confirmation.
Democrats have been staking their case against Kavanaugh on document production, largely arguing that there must be something to hide in Kavanaugh’s past & that’s the only possible reason why thousands of pages of documents from his time in the George W. Bush White House are being withheld. They might be right, and the additional dumping of 42,000 pages of documents hours before the hearing began was likely an intentional effort so lawmakers (Democrats) wouldn’t have time to review them. But it’s an argument the Dems will likely lose, especially with the American people, who aren’t going to get hung up on a largely administrative process. Conservatives don’t care because they’re getting another Republican-appointed judge & there aren’t enough Democrats to make a difference. The Dems only hope right now is to put up a solid fight to look good for their base ahead of the midterms and 2020.
But there are some major implications should Kavanaugh be confirmed. In his opening remarks, he said all the right things… He humanized himself by focusing on his wife and daughters (hey, my Mom is here! Margaret just got her braces off! Liza gives great hugs!). He also tried to make the case that he’s completely impartial and that the Supreme Court is not at all a partisan body:
A good judge must be an umpire—a neutral and impartial arbiter who favors no litigant or policy. As Justice Kennedy explained in Texas versus Johnson, one of his greatest opinions, judges do not make decisions to reach a preferred result. Judges make decisions because “the law and the Constitution, as we see them, compel the result.” Over the past 12 years, I have ruled sometimes for the prosecution and sometimes for criminal defendants, sometimes for workers and sometimes for businesses, sometimes for environmentalists and sometimes for coal miners. In each case, I have followed the law. I don’t decide cases based on personal or policy preferences. I am not a pro-plaintiff or pro-defendant judge. I am not a pro-prosecution or pro-defense judge. I am a pro-law judge.
Sounds good, except that Kavanugh has been outspoken about Roe v. Wade, and newly released emails show he doesn’t necessarily believe “settled law” is in fact necessarily settled. There will certainly be changes to abortion rights in the next few decades. Make no mistake, America will be going backward.
Kavanaugh also claims to have ruled in favor of environmentalists, but as Michael Livermore (law professor at Univ. of Virginia School of Law) writes at SCOTUS Blog: “Judge Brett Kavanaugh, has exhibited a very clear track record of relative solicitousness to regulated industry and skepticism to environmental interests.” In other words, Kavanaugh is anti-regulation, for some reason believing that large corporations and energy companies will just do right by the environment. There are obviously so many examples to counter this that we could be here all day. Kavanaugh is perfect for the Trump admin. because if any challenges to its numerous changes at EPA ever make it up the judicial chain, they’ll have another ally.
Kavanaugh’s pro-business agenda also fits right in with the Trump admin. Throughout his career, he’s tended to side with business interests as they related to regulation and workers’ rights, according to the New York Times. But who looks out for the consumer? Shouldn’t that also be the role of judges at every level: to look out for those who can’t afford huge legal bills, aka the “little guy”? Show me a major corporation that does the right thing because it wants to; they are few and far between, and if they’ve ended up in court, it’s likely not without cause.
The future of America and her values aside, there’s also one glaring implication should Kavanaugh be confirmed… He conveniently believes that Presidents are above the law at a time when our President is facing a federal investigation for impeachable offenses. Of course (conveniently?), Kavanaugh’s views have changed since he was part of the team investigating Pres. Bill Clinton. Democrats brought this up during Day 1 of Kavanaugh’s hearing, arguing Trump nominated him with “an eye toward himself,” according to Chris Coons. But they’re going to have to do better than that. This is where Democrats have a legitimate argument and Republicans should be concerned as well. Kavanaugh’s own writings over the years have shown drastically different views on executive privilege, depending on the party of the president in question, and he needs to answer to that and explain his rationale and evolvement on the issue.
If the Democrats can’t make this case against Kavanaugh, it’ll be a huge failure not only for them, but also for the American people.
Clare Cannon worked at a major cable news network for nearly a decade & prior to that in the field of democracy building & election integrity.