Co-Written by Kevin Zeese and Margaret Flowers
The Kavanaugh confirmation process has been a missed opportunity for the United States to face up to many urgent issues on which the bi-partisans in Washington, DC are united and wrong.
Kavanaugh’s career as a Republican legal operative and judge supporting the power of corporations, the security state and abusive foreign policy should have been put on trial. The hearings could have provided an opportunity to confront the security state, use of torture, mass spying and the domination of money in politics and oligarchy as he has had an important role in each of these.
Kavanaugh’s behavior as a teenager who likely drank too much and was inappropriately aggressive and abusive with women, perhaps even attempting rape, must also be confronted. In an era where patriarchy and mistreatment of women are being challenged, Kavanaugh is the wrong nominee for this important time. However, sexual assault should not be a distraction that keeps the public’s focus off other issues raised by his career as a conservative political activist.
The Security State, Mass Spying and Torture
A central issue of our era is the US security state — mass spying on emails, Internet activity, texts and phone calls. Judge Kavanough enabled invasive spying on everyone in the United States. He described mass surveillance as “entirely consistent” with the US Constitution. This manipulation of the law turns the Constitution upside down a it clearly requires probable cause and a search warrant for the government to conduct searches.
Kavanaugh explained in a decision, “national security . . . outweighs the impact on privacy occasioned by this [NSA] program.” This low regard for protecting individual privacy should have been enough for a majority of the Senate to say this nominee is inappropriate for the court.
Kavanaugh ruled multiple times that police have the power to search people, emphasizing “reasonableness” as the standard for searching people. He ruled broadly for the police in searches conducted on the street without a warrant and for broader use of drug testing of federal employees. Kavanaugh applauded Justice Rehnquist’s views on the Fourth Amendment, which favored police searches by defining probable cause in a flexible way and creating a broad exception for when the government has “special needs” to search without a warrant or probable cause. In this era of police abuse through stop and frisk, jump out squads and searches when driving (or walking or running) while black, Kavanaugh is the wrong nominee and should be disqualified.
Kavanaugh also played a role in the Bush torture policy. Torture is against US and international law, certainly facilitating torture should be disqualifying not only as a justice but should result in disbarment as a lawyer. Kavanaugh was appointed by President Trump, who once vowed he would “bring back waterboarding and … a hell of a lot worse than waterboarding.” Minimizing torture is demonstrated in his rulings, e.g. not protecting prisoners at risk of torture and not allowing people to sue the government on allegations of torture.
Torture is a landmine in the Senate, so Kavanaugh misled the Senate likely committing perjury on torture. In his 2006 confirmation, he said he was “not involved” in “questions about the rules governing detention of combatants.” Tens of thousands of documents have been kept secret by the White House about Kavanaugh from the Bush era. Even so, during these confirmation hearings documents related to the nomination of a lawyer involved in the torture program showed Kavanaugh’s role in torture policies leading Senator Dick Durbin to write: “It is clear now that not only did Judge Kavanaugh mislead me when it came to his involvement in the Bush Administration’s detention and interrogation policies, but also regarding his role in the controversial Haynes nomination.”
Durbin spoke more broadly about perjury writing: “This is a theme that we see emerge with Judge Kavanaugh time and time again – he says one thing under oath, and then the documents tell a different story. It is no wonder the White House and Senate Republicans are rushing through this nomination and hiding much of Judge Kavanaugh’s record—the questions about this nominee’s credibility are growing every day.” The long list of perjury allegations should be investigated and if proven should result in him not being confirmed.
This should have been enough to stop the process until documents were released to reveal Kavanaugh’s role as Associate White House Counsel under George Bush from 2001 to 2003 and as his White House Staff Secretary from 2003 to 2006. Unfortunately, Democrats have been complicit in allowing torture as well, e.g. the Obama administration never prosecuted anyone accused of torture and advanced the careers of people involved in torture.
Shouldn’t the risk of having a torture facilitator on the Supreme Court be enough to stop this nomination?
Corporate Power vs Protecting People and the Planet
In this era of corporate power, Kavanaugh sides with the corporations. Ralph Nader describes him as a corporation masquerading as a judge. He narrowly limited the powers of federal agencies to curtail corporate power and to protect the interests of the people and planet.
This is evident in cases where Kavanaugh has favored reducing restrictions on polluting corporations. He dissented in cases where the majority ruled in favor of environmental protection but has never dissented where the majority ruled against protecting the environment. He ruled against agencies seeking to protect clean air and water. If Kavanaugh is on the court, it will be much harder to hold corporations responsible for the damage they have done to the climate, the environment or health.
Kavanaugh takes the side of businesses over their workers with a consistent history of anti-union and anti-labor rulings. A few examples of many, he ruled in favor of the Trump Organization throwing out the results of a union election, sided with the management of Sheldon Adelson’s Venetian CasinoResort upholding the casino’s First Amendment right to summon police against workers engaged in a peaceful demonstration — for which they had a permit, affirmed the Department of Defense’s discretion to negate the collective bargaining rights of employees, and overturned an NLRB ruling that allowed Verizon workers to display pro-union signs on company property despite having given up the right to picket in their collective bargaining agreement. In this time of labor unrest and mistreatment of workers, Kavanaugh will be a detriment to workers rights.
Kavanough opposed the Federal Communications Commission (FCC) ruling in favor of net neutrality, which forbids telecom companies from discrimination on the Internet. He argued net neutrality violated the First Amendment rights of Internet Service Providers (ISP) and was beyond the power granted to the FCC. He put the rights of big corporations ahead of the people having a free and open Internet. The idea that an ISP has a right to control what it allows on the Internet could give corporations great control over what people see on the Internet. It is a very dangerous line of reasoning in this era of corporations curtailing news that challenges the mainstream narrative.
In 2016, Kavanaugh was asked if he believed that money spent during campaigns represents speech, and is protected by the First Amendment and answered: “Absolutely.” Kavanaugh joined in decisions and wrote opinions consistent with efforts to oppose any attempt by Congress or the Federal Elections Commission to restrict campaign contributions or expenditures. His view that free speech allows unrestricted money in elections will add to the avalanche of big money politics. Wealthy elites and big corporations will have even greater influence with Kavanaugh on the court.
Kavanaugh will be friendly to powerful business and the interests of the wealthy on the Supreme Court, and will tend to stand in the way of efforts by administrative agencies to regulate them and by people seeking greater rights.
Women’s Rights, Abortion and Sexual Assault
Judge Kavanaugh has not ruled on Roe v. Wade and whether the constitution protects a woman’s right to have an abortion. In 2017, Kavanaugh gave a Constitution Day lecture to the conservative American Enterprise Institute where he praised Justice Rehnquist and one of the cases he focused on was his dissent in Roe. Rehnquist opposed making abortion constitutionally protected, writing, it was not “rooted in the traditions and conscience of our people.” Shortly after that speech, Kavanaugh wrote a dissent that argued an immigrant minor in government detention did not have a right to obtain an abortion.
On the third day of his confirmation hearings, Judge Brett Kavanaugh seemed to refer to the use of contraception as “abortion-inducing drugs.” It was a discussion of a case where Kavanaugh dissented from the majority involving the Priests for Life’s challenge to the Affordable Care Act (ACA). Kavanaugh opposed the requirement that all health plans cover birth control, claiming that IUDs and emergency contraception were an infringement of their free exercise of religion.
Kavanaugh clerked for Judge Kosinski who he describes as a mentor. Kosinski was forced to resign after being accused of harassing at least 12 women in the sanctity of his judicial chambers. Kavanaugh swears he never saw any signs that the judge was sexually harassing women, but the Democrats did not ask a single question about it.
Multiple accusers have come forward to allege Kavanaugh’s involvement in sexual assault and abuse. While Dr. Christine Blasey Ford is viewed as credible – she was the only witness allowed to testify – it is not clear these allegations will be thoroughly reviewed. After being approved by the committee, the Republican leadership and President Trump agreed on a limited FBI investigation. It is unclear whether the FBI will be allowed to follow all the evidence and question all the witnesses. As we write this newsletter, the outcome has yet to unfold but Jeffrey St. Clair at Countpunch points out, “the FBI investigation will be overseen by director Christopher Wray, who was two years behind Brett-boy at both Yale and Yale Law. After graduation, they entered the same rightwing political orbit and both took jobs in the Bush Administration. How do you think it’s going to turn out?”
Why don’t Democrats, as Ralph Nader suggests, hold their own hearing and question all the witnesses? If there is corroborating evidence for the accusers, Kavanaugh should not be approved.
A Republican Political Operative As A Justice?
Kavanaugh has been a legal operative for the Republican Party involved in many high profile partisan legal battles. He spent three years working for Ken Starr on the impeachment of Bill Clinton where he pressed Starr to ask Clinton sexually graphic details about his relationship with Monica Lewinisky. He tried to expand the Starr investigation into the death of Vince Foster, whose death had been ruled a suicide. He was a lead author of the infamous Starr Report—widely criticized as “strain[ing] credulity” and being based on “shaky allegations.”
Kavanaugh was one of George W. Bush’s lawyers in the litigation after the election in 2000, which sought to block a recount of ballots in Florida, resulting in a decision that handed the presidential election to Bush. In the Bush administration, he was involved in pushing for conservative judges as well as controversial policies like torture.
During his confirmation process, in response to the accusations of assault, he claimed they were “a calculated and orchestrated political hit” and “revenge on behalf of the Clinton’s.” He demonstrated partisan anger and displayed a lack of judicial temperament, making him unfit to serve on the Supreme Court.
Kavanaugh exposes the true partisan nature of the highest court, which is not a neutral arbiter but another battleground for partisan politics. The lack of debate on issues of spying, torture and more shows both parties support a court that protects the security state and corporate interests over people and planet. Accusations of sexual assault must be confronted, but there are many reasons Kavanaugh should not be on the court. The confirmation process undermines the court’s legitimacy and highlights bi-partisan corruption.
Kevin Zeese and Margaret Flowers are directors of Popular Resistance