Kavanaugh is a Political, Partisan Jurist

By JOEL D. JOSEPH

Judges are not politicians and should not act with partisan bias. Judges should be independent, non-partisan and have a fundamental sense of justice. Our current Supreme Court is badly split between liberals and conservatives, Democrats and Republicans. We don’t have one truly independent justice. The worst US Supreme Court decision in recent history was Bush v. Gore where the Supreme Court ruled 5-4 on a strictly political vote to anoint George W. Bush as president of the United States.

Justice Hugo Black said, “Our Constitution was not written in the sands to be washed away by each wave of new judges blown in by each successive political wind.” Justice Black should know political winds as he was a senator from Alabama from 1927 to 1937 when Franklin Roosevelt appointed him to the high court.

Black never should have been appointed to the court as he was political through and through. Black authored Korematsu v. United States during World War II, one of the worst decisions in the history of the Supreme Court. The Koresmatsu decision approved the mass incarceration of more than 100,000 Americans of Japanese ancestry. This decision has been universally criticized and was officially overturned in June in Trump v. Hawaii, the case that approved the Trump ban on immigration from seven nations.

Hugo Black was more loyal to the Democrats and President Roosevelt than to the Constitution — this explains his abominable opinion in the Korematsu case. Similarly, Judge Brett Kavanaugh may be more loyal to President Trump, and fits the mold of a justice who would author one of the worst decisions of the Supreme Court.

The Fourth Chief Justice of the United States, John Marshall, said, “What is it that makes us trust our judges? Their independence in office and manner of appointment.” Kavanaugh, who has sat on the US Court of Appeals for the D.C. Circuit, is not independent in any way, and his appointment, by a tainted president under criminal investigation, should not be confirmed.

Kavanaugh is a Republican Party loyalist. Kavanaugh worked on the Republican effort to impeach President Bill Clinton and worked on the Republican campaign to install George W. Bush as President in Bush v. Gore. He toes the party line on abortion, gun control, workers’ rights, consumers’ rights, separation of church and state, healthcare and privacy.

Concerning abortion, Kavanaugh dissented vigorously after a district court judge allowed a 17-year old female held by immigration authorities to get an abortion. In his dissent, Kavanaugh accused his colleagues of creating “a new right for unlawful immigrant minors in US government detention to obtain immediate abortion on demand.” The phrase — “abortion on demand” — is one of the anti-abortion Republican buzzwords, code for “I am a Christian who supports life of the unborn.”

Contrary to rulings by numerous federal courts, Judge Kavanaugh wrote in a dissent that semi-automatic assault rifles are protected by the Second Amendment. Sen. Chris Murphy, D-Conn., a champion for preventing gun violence, said, “Brett Kavanaugh is a true Second Amendment radical. He believes assault weapon bans are unconstitutional, a position way out of the judicial mainstream, far to the right of even the late Justice Scalia.”

Kavanaugh consistently rules in favor of corporations at the expense of workers and consumers. Sharon Block, a former National Labor Relations Board member, said Judge Kavanaugh’s D.C. Circuit record “demonstrates consistent support for the interests of employers and a lack of concern for the interests of workers and the government agencies” that are protecting worker rights. “What stands out about Kavanaugh’s record in labor cases is not just his consistency in ruling for employers over workers, but the seemingly unnecessary positions he sometimes takes when doing so,” Block wrote. For example, Kavanaugh wrote a 2016 opinion that employers can require workers to waive their fundamental right to picket in arbitration agreements. Employers force these mandatory agreements on workers, stripping away their constitutional rights.

Kavanaugh delivered a temporary victory to conservatives in October 2016, when he wrote an opinion declaring the structure of the Consumer Financial Protection Bureau — a powerful banking industry watchdog proposed by Senator Elizabeth Warren — to be unconstitutional. Writing for a three-judge panel, Kavanaugh said the 2010 Dodd-Frank law had wrongly placed “enormous executive power” in the CFPB’s single director, which Republicans and the banking industry want to replace with a multi-member commission. Supporters of the CFPB accused Kavanaugh of acting as a partisan activist, and the constitutionality of the CFPB’s structure was upheld by the full D.C. Circuit Court of Appeals in 2018.

In 2012, Kavanaugh wrote a decision that rejected the EPA’s attempt to curb air pollution that crosses state lines. He has often leaned toward restricting the EPA’s powers when he believed the agency lacked specific authorization from Congress, including in courtroom comments surrounding the Obama administration’s climate rules for power plants.

In a 2014 ruling concerning an EPA rule on toxic mercury from power plants, Kavanaugh wrote in a dissent that EPA had acted wrongly in not weighing costs when it first decided to write the regulation. A year later, a partisan 5-4 Supreme Court ruling converted Kavanaugh’s reasoning into the majority. Pollution should not be a partisan issue — even Richard Nixon supported the Clean Air Act — but it is. Judge Kavanaugh is not independent on environmental issues. He is on the wrong side of this partisan divide.

On separation of church and state, Kavanaugh has suggested that he may be open to widening the flow of public funding to religious schools. In an essay last year for the right-wing American Enterprise Institute, Kavanaugh supported the late Chief Justice William Rehnquist’s efforts to reverse prior Supreme Court attempts at “erecting a strict wall of separation between church and state” — especially when it comes to schools. He also predicted during a CNN appearance in 2000 that the court would one day uphold school vouchers. Kavanaugh wrote a friend-of-the-court brief in December, 1999 in favor of a Texas high school’s policy allowing the use of a public address system for prayers at school football games. Judges must be firm in their resolve to keep government out of religion and religion out of government. Judge Kavanaugh has shown that he will not do that.

I have not found a single case where Judge Kavanaugh parted company with the conservative agenda. Justice Anthony Kennedy, who Kavanaugh was nominated to replace, strayed from the Republican Party line on gay rights and abortion. Kennedy had a reasonable sense of justice and independence, but did participate as a Republican partisan in Bush v. Gore and Citizens United. Some Republican appointees have had a strong sense of justice and independence, including Sandra Day O’Connor and John Paul Stevens. Not only is Kavanaugh a rigid Republican, he does not appear to have a fundamental sense of justice, or independence, and should not be confirmed to the highest court in the land.

Joel D. Joseph is author of Black Mondays: Worst Decisions of the Supreme Court. He testified before the Senate Judiciary Committee in opposition to Judge Robert Bork’s appointment, and published Sen. Paul Simon’s book, Advice & Consent: Clarence Thomas, Robert Bork and the Intriguing History of the Supreme Court’s Nomination Battles (National Press Books, 1992).

From The Progressive Populist, August 15, 2018

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