Supreme Court Justice nominee Brett Kavanaugh in the Senate Judiciary Committee Hearing room. PHOTO/ POOL
By Ranti Olaose
Published: September 12th, 2018
When Supreme Court Justice Anthony Kennedy announced his retirement in June, left-leaning circles received the news with much alarm and distress. Kennedy was a crucial swing vote in a sharply divided court and his retirement left open a void for Donald Trump to fill with a reliably conservative justice, giving the court an immutable conservative bent for decades. Their fear appears to have been justified with the nomination of Justice Brett Kavanaugh.
Kavanaugh is a staunch right-wing judge with a long record of hostility towards abortion and contraception rights, gun safety laws, net neutrality and many other issues. This spells danger for rights that many have come to view as secured, such as gay marriage (Kennedy had sided with the liberal wing of the court in the Obergfell decision that legalized gay marriage across the country in 2015), abortion rights and workers’ rights as well as several that remain undecided or hanging in the balance. A reliable 5th conservative vote in Kavanaugh would allow the Court to carry out far-reaching acts of conservative activism such as reversing Roe vs Wade, the 1973 decision that allows women the right to an abortion, which has been a longstanding goal of the conservative movement for decades.
Even more troubling are Kavanaugh’s views on executive authority. In a 2009 Minnesota Law Review article, Kavanaugh wrote that, “Congress might consider a law exempting a President — while in office — from criminal prosecution and investigation, including from questioning by criminal prosecutors or defense counsel.” This is perhaps the chief reason he was nominated by Trump, who has currently been named by his former lawyer Michael Cohen as a conspirator in a federal crime.
If or when Trump faces charges from the ongoing special counsel investigation, that case could very well end up in Supreme Court during which his appointee Kavanaugh would surely provide a vote to shield him from the charges. This scenario is the stuff of authoritarian regimes, and would spell the end of the judiciary as an independent institution. It is incredibly ironic that the Republicans who spent the entirety of the Obama years complaining about the power of the Executive branch are currently working to enable this scenario, which would effectively put the president above the law.
In their hurry to install a rubber stamp for their agenda, Senate Republicans are also making a mockery of the confirmation process. When one remembers how they stole a Supreme Court opening from President Obama two years ago with the excuse that it was too soon before an election, their haste to confirm a lifetime appointment by a president who is an unindicted accomplice to a federal crime months before a major election is doubly infuriating. The confirmation process has been shrouded in secrecy from the beginning as they refused to produce the vast majority of Kavanaugh’s records from his work in the Bush White House, except when they dumped 42,000 pages of documents the night before his hearings.
This type of obfuscation by a Supreme Court nominee is unprecedented and highly suspicious, but Senate Republicans apparently do not care which norms and rules they break in their quest to reshape the course of American jurisprudence and drag the country back to darker days. His confirmation appears to be all but certain as Senate Republicans currently control the chamber, but it is undeniable that his appointment to the Court will spell disaster for the judiciary and the country at large. Republicans have a moral duty to reject this nominee, and judging by their past actions, this means that they will probably do the exact opposite.