Brett Kavanaugh on the Supreme Court – worse than predicted?
The seating of Kavanaugh on the SCOTUS guarantees an anti-labor majority so that decisions against workers, like the one the court made in the Janus case, are assured for the foreseeable future. | AP

WASHINGTON—Federal appellate judge Brett Kavanaugh is now Justice #9 on the U.S. Supreme Court – and right-wing GOP-named Justice #5. And his impact on the lives of workers, women, minorities and everyone else might be worse than even his foes predicted.

That’s because the Senate’s final debate before its 50-48 virtual party-line vote for Kavanaugh, GOP President Donald Trump’s second nominee to the High Court, disclosed even more disturbing lower court rulings and dissents by Kavanaugh. And the fear is that Kavanaugh, unlike his mentor, retired “swing” Justice Anthony Kennedy, is an inflexible right-wing ideologue.

Kavanaugh’s tirade against Democrats, the Clintons and “the left” in general disqualifies him from having the judicial, and judicious, temperament the nation’s top tribunal requires, says one who knows the value of such a position: Retired Justice John Paul Stevens.

Just days before the vote, in answering a question about Kavanaugh, Stevens revealed he first thought Kavanaugh, 53, who sat on the U.S. Circuit Court of Appeals for D.C. – often called the nation’s second-highest court – for the last 12 years, was qualified for the top bench.

“But his performance during the hearings,” when Kavanaugh unleashed his ire “caused me to change my mind,” said the retired justice from Chicago, named to the court in 1975 by GOP President Gerald Ford. Stevens, now 98, retired in 2010.

After praising Kavanaugh’s appellate judgeship record, Stevens added: “His performance demonstrated a potential bias against enough potential litigants in front of the court that he could not perform his full responsibilities.” Kavanaugh would thus become “a part-time justice,” Stevens told a forum in Florida. That line drew applause.

“After witnessing the vitriol Judge Kavanaugh spewed, how could any left-leaning cause think they would ever possibly get a fair shake from him should their case come before the Supreme Court?” Sen. Thomas Carper, D-Del., asked during the Senate debate before the final vote.

The mass protests against Kavanaugh because of his sexual assault on Dr. Christine Blasey Ford when both were students at elite D.C.-area private schools took the headlines for the last two weeks of the drama. That obscured the Kavanaugh rulings and dissents that led the AFL-CIO, the Leadership Conference on Civil Rights, individual unions, church groups, other civil rights, women’s rights and progressive groups to take to the streets.

The Senate Democrats fighting Kavanaugh disagreed with his rulings, at least on high-profile cases – the types where he would be the cemented-in right-wing justice in 5-4 majority votes along party lines, with the five GOP-named justices for, and the others against.

“We strongly disagree with a number of Judge Kavanaugh’s views,” said Senate Minority Leader Charles Schumer, D-N.Y.

“He is deeply skeptical of un-enumerated rights, including a woman’s right to make fundamentally private decisions about her medical care. He is deeply skeptical of the government’s role in protecting Americans with preexisting conditions. He is deeply skeptical of nearly all rules and regulations that protect consumers, workers, and the environment.”

In their own two-hour private meeting, Schumer said, Kavanaugh’s “answers were constantly evasive and utterly unsatisfactory. It was ‘deja vu all over again’ in the first round of hearings,” the New Yorker added, quoting Yogi Berra.

The senators in that final late-night debate discussed those Kavanaugh rulings – including some previously little-known. They included:

Labor law and workers’ rights:  Kavanaugh “claims to be a textualist, but he has a habit of creatively defining words,” Minority Whip Dick Durbin, D-Ill., said. “In the Agriprocessors case, which I asked him about directly, his dissent abandoned the text of the controlling” National Labor Relations Act.

“Instead, he borrowed a definition from another statute in order to argue against the right of slaughterhouse workers to vote to form a union. When I asked Judge Kavanaugh whether he ever worked in a job himself that was dirty and dangerous, as dangerous as a slaughterhouse, he told me he used to cut grass and worked one summer in construction.”

“I am troubled about his views on workers’ rights to organize, on voting rights, on civil rights, and on the principle of equal justice under the law,” added Sen. Cory Booker, D-N.J.

Kavanaugh also has voted 75 times to overturn federal agency rules, Trump boasted in nominating him. He takes a dim view of agency expertise, which the justices recognized in a decades-old decision involving Chevron Oil Company and environmental rules.

That Chevron decision protects workers, Sen. Amy Klobuchar, DFL-Minn., said.

“These (agency) decisions have real implications for people across the country. These rules protect our drinking water and keep our workplaces safe. In the end, it wasn’t a federal judge helped by the D.C. Circuit’s reliance on Chevron in interpreting a Labor Department rule. It was an hourly Minnesota grocery store worker who got to keep his hard-earned pension.” Kavanaugh dissented, she noted.

“As a granddaughter of a miner, I can tell you that it wasn’t a CEO or a corporate board chair whose life was saved by mining safety rules. It was the Minnesota iron ore workers like my grandpa.”

And Sen. Sheldon Whitehouse, D-R.I., noted the five GOP-named justices on the court – including Anthony Kennedy, whom Kavanaugh replaces – voted 73-0 in 5-4 rulings “for corporate interests and special interests” since GOP-named John Roberts became chief justice. One was the Janus case where the justices declared every single state and local government worker in the U.S. is a potential “free rider” who can use unions’ services without paying one red cent for them. Kavanaugh, Whitehouse said, would cement that pro-corporate record.

“This pattern is a disaster for the court, and I know Kavanaugh will contribute to that disaster. How do I know this? I know this because Kavanaugh’s record tells me. That is why he is the nominee, after all,” Whitehouse said. Kavanaugh, he noted, sided with corporations 91 percent of the time in his circuit court rulings and dissents.

Reproductive choice: “Last year, Judge Kavanaugh argued in a dissent in a Texas case that a Jane Doe should not be able to exercise her right to choose because she did not have family and friends help her make the decision,” said Sen. Dianne Feinstein, D-Calif. Trump made opposition to reproductive choice his litmus test for the court. Groups opposing Kavanaugh emphasized his anti-choice position too.

“If adopted, this argument could rewrite Supreme Court precedent and require courts to determine whether a young woman has a sufficient support network when making her decision, even in cases — as is in this one — where she had gone before a court,” Feinstein added.

“His reasoning demonstrates Judge Kavanaugh not only is willing to disregard precedent, but his opinions fail to appreciate the challenging realities women face when making these most difficult decisions.” When Feinstein asked Kavanaugh if the court “correctly decided” the two key reproductive choice decisions, in 1973 and 1992, he ducked.

“There is a difference between saying that precedent deserves respect and saying that it cannot be overturned. They are not the same,” added Sen. Robert Menendez, D-N.J.

The wider impact: “Roe v Wade” – the 1973 ruling – “is one of a series of cases that upheld an individual’s right to decide who to marry, where to send your children to school, what kind of medical care you can receive at the end of life, as well as whether and when to have a family. According to these cases, the government cannot interfere with these decisions,” Feinstein commented.

The Affordable Care Act: “Americans overwhelmingly support protection for those living with pre-existing conditions. Brett Kavanaugh ruled against upholding the Affordable Care Act in 2011,” Sen. Thomas Carper, D-Del., explained.  “That is why we expected he would side with conservative justices if and when cases like Texas v. United States” – where red states are challenging the ACA’s health care requirements, and the law itself, as unconstitutional – “come before the court. If he does, the ACA’s protection for people with preexisting conditions will be invalidated for tens of millions of Americans.”

Sen. Debbie Stabenow, D-Mich., elaborated on that point. “The Trump administration is refusing to defend the law that protects people with preexisting conditions — people like Amy, a small business owner with chronic leukemia, and Louisa, a beautiful little girl born with half a heart,” Stabenow said of the Texas-GOP-led lawsuit against the ACA.

“Half of Michigan families include someone with a preexisting condition, like high blood pressure, heart disease, asthma, diabetes, cancer. They deserve to know that healthcare will be there when they need it.”

“Yet, if this case were to come before the U.S. Supreme Court and if Judge Kavanaugh were a member, I believe many families in Michigan would find themselves with no coverage and no care. We need judges who will make decisions based on what is best for people — not drug companies, not insurance companies, but for people.”

Gun control: There, at least, Kavanaugh answered. Upholding his prior statements about the Supreme Court’s ruling several years ago saying the U.S. Constitution’s 2nd Amendment’s “right to bear arms” covers all handguns at all times, Kavanaugh would have extended it, banning regulation of other guns.

“There are millions and millions and millions of semi-automatic rifles that are possessed. So that seemed to fit ‘common use’ and not be a dangerous and unusual weapon,” he told Feinstein during the Senate Judiciary Committee hearing on his nomination. “Think about that,” she commented later.

Presidential power and accountability. Much of the debate covered whether Kavanaugh favors any limits on the president or any accountability by him to the courts and Congress. Several senators cited Kavanaugh’s Minnesota Law Review article where he said the only remedy for an unaccountable president is impeachment.

“If the President does something dastardly, the impeachment process is available. No single prosecutor, judge, or jury should be able to accomplish what the Constitution assigns to Congress,” Kavanaugh wrote then.

Sen. Amy Klobuchar, DFL-Minn., a former prosecutor, called that “among the most expansive views of presidential power we have ever seen” — and he (Kavanaugh) “has been making the case for strong presidential powers for decades.”

Other senators noted how Kavanaugh, previously a top George W. Bush White House staffer, flipped to that impeachment-only position after being a lawyer-advocate asking the most probing sexual questions of then-President Bill Clinton, a Democrat. Kavanaugh was also a prime author of independent counsel Kenneth Starr’s report on the partisan impeachment investigation of Clinton’s relationship – and his lies – about oral sex with intern Monica Lewinsky.

Durbin raised yet another question. “Judge Kavanaugh wrote a striking passage…dissenting from the majority’s upholding of the Affordable Care Act. He wrote: ‘Under the Constitution, the president may decline to enforce a statute that regulates private individuals when the president deems the statute unconstitutional, even if a court has held or would hold the statute constitutional.’”

“This is a truly breathtaking claim of presidential power, a claim particularly problematic at this moment in history,” Durbin commented. “What would that mean for women’s health? What would that mean at a time when the administration is challenging protections for people who are sick or have preexisting conditions?” Klobuchar asked Kavanaugh. So did Durbin and other Democrats. He ducked, she said

The environment: Carper called Kavanaugh “the greatest threat” to environmental protection, and compared him to anti-environment former Trump EPA chief Scott Pruitt – with the difference that Kavanaugh may be on the court for 25 years. That alone convinced Carper to oppose Kavanaugh.

“In all my years, I have yet to meet anyone who doesn’t want to make sure we have clean air to breathe and clean water to drink. But a review of Judge Kavanaugh’s nearly 300 opinions over the last 12 years, both concurrencies and dissents, shows Judge Kavanaugh voted to weaken or block environmental protections a staggering 89 percent of the time.”

“In fact, Judge Kavanaugh has never dissented in a case that would weaken environmental protections and admitted as much” in written answers to the two California senators. “In other words, almost nine out of 10 times, he has sided with those who weaken environmental protections over those who would strengthen it.

“For example, just last year, Pruitt’s attempt to delay rules limiting methane emissions from oil and gas drilling was challenged” in Kavanaugh’s court. Kavanaugh voted with Pruitt. His colleagues overruled him, Carper noted.

“And in 2012, he blocked air pollution restrictions that covered nearly half of our country, endangering thousands of lives. This is especially concerning to those of us who live in downwind states like Delaware, where over 90 percent of our air pollution comes from dirty emissions in states to our west that drift across our borders.” When Delaware and other downwind states took the case to the Supreme Court, they won, and Kavanaugh lost, 6-2, Stabenow noted.

Campaign finance: The Republican Party in general, and Senate Majority Leader Mitch McConnell, R-Kent., in particular, have led the successful charge – which the justices approved, 5-4, in 2010 – to open U.S. campaigns to an unlimited tsunami of corporate and rich persons’ cash. Stabenow said Kavanaugh could open it to the Russians, and other foreign actors, too.

“In one 2011 case, Judge Kavanaugh ruled foreign nationals could not campaign for or contribute money to candidates. That sounds good. Unfortunately, he then went on to say foreign nationals can take part in issue advocacy — giving money for issue advocacy in American elections. In other words, Russians can contribute as much as they want to an issue group, which can then spend on behalf of candidates,” she explained. “Do we imagine he will rule differently from a seat on the Supreme Court?”

Wiretapping and lies: The Senate Democrats complained, with reason, that they received few of the records from Kavanaugh’s White House days under GOP President George W. Bush. But those few included e-mails, released the day before the Senate cloture vote, about Kavanaugh’s role in massive federal wiretapping of virtually everyone in the U.S., as part of the so-called “war on terror.”

“What these emails prove is there is new evidence that Brett Kavanaugh did not tell the truth about his involvement in government wiretapping programs,” Sen. Ron Wyden, D-Ore., an Intelligence Committee member, said.

“There is hard evidence that shows he lied about using stolen documents, hard evidence that shows he lied about his involvement in the confirmation process of certain Bush nominees, hard evidence about the statements made by the other individuals who were present at the party where Dr. Ford was assaulted, hard evidence the nominee lied about when he learned of the second set of allegations made against him. The nominee even lied about small stuff.

“When you can’t trust somebody to tell the truth, they don’t belong on the Supreme Court.”

The wider impact on women: “Senators ought to consider the dangerous signal being sent to survivors of assault and to young people across the country from this debate,” Wyden warned. “Dr. Blasey Ford wasn’t on trial. Nonetheless, she was prosecuted by the majority party. She got smeared as a political pawn, a liar, belittled, with her accusations dismissed by many almost immediately.

“Today, survivors from sea to shining sea are asking: How are we going to be heard? How will we find justice?

“I fear many survivors are going to conclude that coming forward with their story is going to be pointless, and there is very little likelihood of justice — very little likelihood of justice. Even if you are strong, composed, and constantly courteous, it will not help.”

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CONTRIBUTOR

Mark Gruenberg
Mark Gruenberg

Mark Gruenberg is head of the Washington, D.C., bureau of People's World. He is also the editor of Press Associates Inc. (PAI), a union news service in Washington, D.C. that he has headed since 1999. Previously, he worked as Washington correspondent for the Ottaway News Service, as Port Jervis bureau chief for the Middletown, NY Times Herald Record, and as a researcher and writer for Congressional Quarterly. Mark obtained his BA in public policy from the University of Chicago and worked as the University of Chicago correspondent for the Chicago Daily News.

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