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Kavanaugh Threatens the Supreme Court’s Legitimacy

Confirming such a Justice would be a travesty to American democracy

 "Even among the hard-right crowd vetted and promoted by The Federalist Society, Kavanaugh stands out as one of the most extreme." (Photo by Alex Wong/Getty Images)

"Even among the hard-right crowd vetted and promoted by The Federalist Society, Kavanaugh stands out as one of the most extreme." (Photo by Alex Wong/Getty Images)

If the Republican-controlled Senate proceeds with hearings scheduled Sept. 4 to confirm Trump’s appointment of Brett Kavanaugh to a lifetime seat on the Supreme Court, it will delegitimize the Supreme Court as an independent branch of government, and lead the nation towards an authoritarianism which undermines the rule of law.

Confirming such a Justice would be a travesty to American democracy.

With the Senate currently split 50-49 in favor of Republicans, is there not a single Republican Senator who will stand up for the principles of the Constitution and block this confirmation?

A Hand-Picked Extremist

Kavanaugh comes from a list of potential judicial nominees hand-picked for Trump by The Federalist Society. This discreet organization has spent the past several decades recruiting and grooming jurists with extreme right-wing views for lifetime appointments to the the Federal Bench. The society’s longtime executive vice president, Leonard Leo, is on leave from the organization so he can advise President Trump directly on his judicial appointments.

The views Federalist Society members espouse include reversing the rights of women and gay people, overturning Roe v. Wade, suppressing minority voters, blocking attempts to curtail partisan gerrymandering, closing courthouse doors to citizens while favoring corporations, opening American elections to unlimited monetary contributions from corporations and individuals, and undermining government agencies abilities to regulate the economy and the environment.

But even among the hard-right crowd vetted and promoted by The Federalist Society, Kavanaugh stands out as one of the most extreme, particularly for his expansive view of the powers of the President and the lack of remedies for blocking possible Presidential wrongdoing or criminal activity – which is likely why Donald Trump picked Kavanaugh from the Federalist Society’s list.

Opposing Confirmation

There are many reasons to oppose Kavanaugh’s confirmation – in particular, his likely votes to overturn Supreme Court precedent on abortion rights and gay marriage, as well as environmental and financial regulations.

Three key factors support suspending Kavanaugh’s confirmation process immediately:

Trump picked him because he’s likely to protect the President against charges of crimes and wrongdoing.

If confirmed, the 53-year-old Kavanaugh will serve for decades, after being nominated by a President who lost the popular vote by 3 million and confirmed by Senators representing 20 million fewer voters than those who oppose him.

He will likely block environmental regulation and seek to dismantle the “administrative state,” decades after Trump, Mitch McConnell, Steve Bannon and Scott Pruitt are gone or even dead.

Kavanaugh Could Judge Trump

As Sen. Corey Booker recently stated,

The president of the United States should not be above the law. The president of the United States should not be beyond a criminal investigation. The president of the United States should not be able to pick the judge that will preside over questions involving his investigation.

Following the guilty plea of Trump’s former personal lawyer, Michael Cohen, Trump is on record, effectively as an un-indicted coconspirator. Based on the facts that publicly known, there may already be a prima facie case implicating Trump in conspiracy and obstruction of justice.

It is all but certain, therefore, that aspects of the case against Trump will be adjudicated in the Federal Courts, all the way up to The Supreme Court.

It is therefore just plain wrong that a potential defendant should be able to pick one of the jurors who will decide his case.

Kavanaugh’s Record

Kavanaugh’s record shows strong indications that should charges against Trump come before him, he would be likely to support the President’s legal position, which is probably why Trump picked him from the Federalist Society list.

If a case involving the Mueller investigation comes before Kavanaugh, he could vote to invalidate the entire Mueller investigation and put an end to it. When asked at an event sponsored by the right-wing American Enterprise Institute as recently as 2016 to pick one case he’d like to overrule, he picked the one upholding the Independent Counsel.

This is ironic, since Kavanaugh was a key advisor to independent counsel Kenneth Starr during his investigation of President Bill Clinton. It’s true that Robert Mueller is a “Special Counsel” and not an “Independent Counsel,” but it indicates Kavanaugh’s hostility to independent investigations of potential Presidential wrongdoing.

It is likely that Kavanaugh would vote to suppress any subpoena for Trump’s testimony or documents. In U.S. v Nixon (1974), the Supreme Court unanimously overruled Nixon’s claim of executive privilege, and ordered him to turn over the White House tapes to the special prosecutor. After turning over the damning tapes, Nixon resigned the Presidency 16 days later.

Kavanaugh has written that U.S. v. Nixon was likely wrongly decided, and that its precedent should probably be overruled.

Kavanaugh has expressed strong views that a President cannot be indicted for criminal activities while he’s in office. This view, which is based on various legal opinions about the executive branch, has never been tested in court.

There is also a clear distinction between indicting a sitting President, and bringing him to trial while still in office. Kavanaugh would almost certainly vote to block any attempt to hold Trump responsible for criminal behavior so long as he’s President.

In short, Trump may have picked Kavanaugh because Kavanaugh will show loyalty and protect him.

Kavanaugh’s confirmation hearings should be suspended, and his nomination not voted on by the Senate, until the question of Trump’s potential criminal and constitutional liability is resolved.

Kavanaugh Entrenches GOP Minority Rule

In a recent paper, Trinity College professor Kevin McMahon pointed out the disturbing fact that the Senate, in confirming Neil Gorsuch to the Supreme Court earlier this year,

Confirmed a nominee for the High Court appointed by a President who had failed to win the popular vote with the support of a majority of senators who had garnered fewer votes—indeed far fewer votes—in their most recent elections than their colleagues in opposition.

To wit, the 54 Senators who confirmed Gorsuch received nearly 20 million fewer votes that the 45 Senators who opposed him, a minority victory of 54,098.387 to 73,425,062.

Trump, as is more widely known, received nearly 3 million fewer popular votes for President than Hillary Clinton.

If Kavanaugh is confirmed, it will likely be based on the support of a similar minority. Moreover, a CNN poll shows only 37 percent of Americans want him confirmed while 40 percent are opposed.

Thus at least two of the nine lifetime members of the Supreme Court will have been put there by a minority elected President and a minority elected Senate (and in Kavanaugh’s case, supported by a minority of Americans).

Clarence Thomas was confirmed by Senators representing a minority 48.33 percent of voters, and opposed by Senators representing a majority 51.67 percent of voters. Samuel Alito was was confirmed by Senators representing a minority of 47.95 percent of voters and opposed by Senators representing 52.05 percent of voters.

President George W. Bush, who nominated Alito, received 1 million fewer popular votes in his first election than Al Gore and was only elevated to the Presidency by a 5-4 Supreme Court vote that included Justice Thomas in the majority.

By contrast, Merrick Garland, who was denied not only a Senate vote but even personal meetings by a Republican Senate, was nominated by a President who won the popular votes twice, and would have been considered by a Senate whose 46 Democrats representing 20 million more people that the 54 Republicans who blocked his confirmation.

As constitutional scholar Ian Millhiser writes, if Kavanaugh is confirmed,

Republicans will owe their Supreme Court majority to the fact that they can now confirm a justice against the will of the American people, and prevent Democratic Presidents from confirming justices even when the voters want to be governed by Democrats. And the Court’s new Republican majority will use its power to further entrench Republican rule.

This casts significant doubt on the legitimacy of the Supreme Court and is a step down the road towards authoritarianism.

Dismantling the ‘Administrative State’

Even if the Far Right loses the Presidency and Congress, the dead hands of Donald Trump and Mitch McConnell will likely lead to the Supreme Court in blocking environmental and financial regulation for decades to come.  Neil Gorsuch is about to turn 51 years old. Brett Kavanaugh is 53, and both are aligned with former EPA Administrator Scott Pruitt in his hostility to environmental regulation, and with former White House advisor Steve Bannon in his stated goal of dismantling the so-called “administrative state.”

Kavanaugh would move America back towards the early 20th Century, when the Supreme Court consistently found government regulation of the economy unconstitutional. It was called The Lochner Era, after the 1906 Lochner v. New York case in which the Supreme Court overturned a workplace safety law limiting working hours in bakeries to 10 hours a day and 60 hours a week because it interfered with corporations “freedom to contract.” The Lochner precedent led the Court to strike down laws banning child labor or setting minimum wages.

Lochner governed American law until 1937, when the Supreme Court overturned much of FDR’s New Deal legislation. until forced to change course during the Great Depression. In a series of decisions, the Supreme Court started to rule in favor of New Deal policies and upheld subsequent economic regulations as permissible under the Commerce Clause.

In subsequent decades, as the economy became more complex, Congress often passed economic regulations with broad and general mandates and left it to Administrative Agencies like the Securities and Exchange Commission, the Federal Communications Agency, and The Environmental Protection Agency to write rules implementing them.

For example, the Clean Air Act empowered the Environmental Agency to identify harmful types of air pollution and promulgate rules to reduce them. It would simply be impractical if, every time a new polluting technology was created, Congress had to go back and add its regulation to the EPA’s mandate.

In response, The Supreme Court promulgated the Chevron Doctrine which held that courts should defer to the regulatory agencies in the interpretation of the laws they administer.

Kavanaugh (and Gorsuch) are hostile to The Chevron Doctrine. Kavanaugh has called the existence of independent regulatory agencies “a threat to individual liberty.”  In a prominent dissent as a D.C. Court of Appeals judge, Kavanaugh would have held the Consumer Financial Protection Board unconstitutional, calling such agencies “a headless fourth branch of the U.S. Government” that “hold enormous power over the economic and social life of the United States.” In another dissent, Kavanaugh would have blocked net neutrality laws promulgated by the Federal Communications Commission.

If Kavanaugh forms a Supreme Court majority around his views on economic regulation, corporations will be able to go to court to challenge many of the actions of regulatory agencies that curb corporations power, tying them up in court for years, and making agencies hesitant to promulgate new regulations.

Destroying the Environment

Kavanaugh’s strongest opinions oppose environmental regulation. He has voted to block rules which prevent businesses in states which are upwind from other states from sending pollution downwind.

An effort to undermine the EPA’s authority to regulate pollution across state lines, which has been settled law for decades, is at the heard of the Trump administration’s recently proposed ‘Affordable Clean Energy Rule,’ which is designed to help enable coal-fired industries avoid restrictions. 

Even more crucially, in a 5-4 decision joined by retiring Justice Kennedy (who Kavanaugh may replace), the Supreme Court held that regulation of greenhouse gases are within the mandate of the Clean Air Act for the EPA to regulate. Given the chance, Kavanaugh would almost certainly reverse this decision, and at least overturn specific regulations aimed at reducing greenhouse gases and global climate change.

Kavanaugh could become the Scott Pruitt of The Supreme Court. Or as Sen. Ed Markey put it, “”We know Judge Kavanaugh’s track record on the environment, and it is a climate catastrophe.”

Kavanaugh’s confirmation could lead to a slow moving Constitutional Crisis: Future administrations enact environmental and economic regulation to protect the environment, consumers, and workers and the Supreme Court regularly strikes them down, pitting the Court against the will of the people and threatening the future of the planet.

No Hearings or Confirmation for Kavanaugh

Kavanaugh is not simply a conventional conservative court nominee. He’s a threat to holding Trump accountable for his crimes, and a threat to the economy and the environment. He would join the Supreme Court as the nominee of a minority-elected President confirmed by a minority-elected Senate, putting our very democracy at risk.

Is there even one Republican willing to stand up to these threats to our nation, and put the Constitution above party?

Here’s looking at you, Senators Susan Collins of Maine and Lisa Murkowski of Alaska.

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Miles Mogulescu

Miles Mogulescu

Miles Mogulescu is an entertainment attorney/business affairs executive, producer, political activist and writer.

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