Jul 19, 2018
By now, most of Supreme Court Justice Nominee Brett Kavanaugh's decisions and speeches have been pored over by both advocates and reporters. But comparatively little attention has been paid to a posture that has defined Kavanaugh's legal career: a consistent willingness to side with the rich and the powerful over the most vulnerable members of society.
While retiring Justice Anthony Kennedy generally has a pro-business voting record, he has often broken with the conservative wing of the court on civil rights cases and issues of environmental law. At times, this led Kennedy to rule in favor of civil rights and against powerful interests.
With Kavanaugh, there are few exceptions to a reliably anti-worker and anti-consumer record. In an analysis of 286 opinions authored by Kavanaugh as a D.C. Circuit Court of Appeals judge, Adam Feldman of Empirical SCOTUS found that Kavanaugh has "written almost entirely in favor of big businesses, employers in employment disputes, and against defendants in criminal cases." In fact, according to a leaked document obtained by POLITICO, the Trump administration recently asked corporate interest groups for help with Kavanaugh's confirmation, circulating a document touting that, "Kavanaugh helped kill President Obama's most destructive new environmental rules" and that he "has overruled federal regulators 75 times on cases involving clean air, consumer protections, net neutrality and other issues."
One of Kavanaugh's recent decisions, for example, concerned the constitutionality of the Consumer Financial Protection Bureau (CFPB), an agency created in the wake of the 2008 financial crisis that has resulted in nearly $12 billion in relief for consumers who were duped by banks or credit card companies. Kavanaugh found that the entire CFPB was unconstitutional, and even questioned a Supreme Court ruling from 1935 that upheld the constitutionality of independent agencies. His decision was overturned two years later by the full court, who called Kavanaugh's ruling "a wholesale attack on independent agencies...that, if accepted, would broadly transform modern government."
In case after case, Kavanaugh exhibits a preference for the more powerful party.
And in 2012, Kavanaugh dissented from a D.C. Circuit decision finding that the State Department had inappropriately fired an employee based solely on her age. Kavanaugh argued that the State Department's decision did not constitute age discrimination. Even though the agency itself did not dispute the reason for the employee's termination, Kavanaugh said it was "not a close call." As the majority wrote, "the necessary consequence of the Department's position is that it is also free from any statutory bar against terminating an employee...solely on account of his disability or race or religion or sex." In other words, Kavanaugh's ruling would have also allowed the agency to discriminate against people with disabilities, racial and religious minorities, and women.
And Kavanaugh's most prominent positions--his decision to block an unaccompanied young immigrant woman from having an abortion immediately or his criticism of John Roberts' decision upholding the Affordable Care Act (ACA)--would disproportionately harm low-income people. The most frequently cited reason among women getting an abortion is that having a child "would interfere with school, work or other responsibilities, and that they could not afford a child." Indeed, when women are denied abortions, they are more than three times more likely to experience poverty two years later. And the antipoverty effects of the ACA are undeniable. Medicaid--which the law expanded--is one of the most effective antipoverty programs in the country, reducing child poverty by 5.3 percentage points. And although the uninsured rate has increased slightly since Trump took office, it is still significantly lower than before the bill was passed.
But perhaps no decision better illustrates Kavanaugh's ideology than this: in an incident made famous by the documentary "Blackfish," Sea World trainer Dawn Brancheau died after being attacked by a killer whale--making her the third Sea World worker killed by the same whale. When the Occupational Safety and Health Administration fined Sea World $75,000 for safety violations, the company appealed to the D.C. Court of Appeals, where Kavanaugh served. The panel upheld OSHA's fine, but Kavanaugh dissented. In his view, "Many sports events and entertainment shows can be extremely dangerous for the participants." But, he reasoned, society should not "paternalistically decide that the participants in these...activities must be protected from themselves." Kavanaugh's position would undermine the entire foundation of workplace safety regulations.
As Ian Millhiser of ThinkProgressnotes, Trump delegated the task of identifying Supreme Court nominees to the rightwing Federalist Society and Heritage Foundation, organizations that have made it their missions to dismantle federal regulations--everything from labor law to consumer protections to environmental rules. Kavanaugh's record suggests he would do just that.
In case after case, Kavanaugh exhibits a preference for the more powerful party--whether corporations, agencies, or the criminal justice system--over the less powerful--whether consumers, workers, or victims of pollution.
That alone should give every Senator pause before they vote on Kavanaugh's nomination.
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