Thursday, August 30, 2018

Kavanaugh's Threat to Equal Justice Under Law

      The Senate Judiciary Committee will be put to the test next week [Sept. 4-7] to determine whether senators can show what kind of Supreme Court justice Brett Kavanaugh would be if, as widely expected, he is confirmed for the lifetime position. Two groups opposed to the nomination produced detailed, documented reports this week [Aug. 29] that show, based on Kavanaugh's judicial record on the D.C. Circuit, that he would be friendly to business interests at the expense of workers, consumers, or environmental quality and receptive to arguments to increase presidential power at the expense of Congress and independent regulatory agencies.
      The hearing, set to open on Tuesday (Sept. 4) and continue for four days, will feature as always carefully rehearsed pledges by the nominee disclaiming any ideological agenda and pledging open-mindedness if confirmed. The Republican majority, led by the committee's chairman Iowa's Chuck Grassley, will follow with lengthy recitation of Kavanaugh's undisputed academic and professional credentials and judicial experience while passing over his earlier experience as a partisan Republican hatchet-man with Kenneth Starr's much maligned investigation of President Bill Clinton.
      With the gavel in Grassley's Republican hands, the 10 Democratic senators, led by the ranking member California's Dianne Feinstein, will need to use their time wisely with incisive questions based on Kavanaugh's record to show that he would not be writing and voting as a Supreme Court justice on a blank slate. Kavanaugh's record, carefully examined, shows the likely damage to equal justice under law if President Trump succeeds in installing a second conservative ideologue on the Supreme Court.
      As best to examine Kavanaugh's judicial record, the longtime consumer advocacy group Public Citizen specifically compiled the 101 divided decisions in which he has participated in his 12 years on the federal appeals court for the District of Columbia. The report written by the group's president, Robert Weissman analyzed 61 of those cases divided into five categories: consumer and regulatory affairs; environmental cases; worker rights; damage suits against police or human rights violators; and antitrust cases.
      In those cases with judges in disagreement, a clear pattern emerged in Kavanaugh's votes and opinions. In the 22 consumer and regulatory affairs cases, Kavanaugh sided with corporate interests and against agencies or public interests in 18, all but four. In 11 of 13 environmental cases, he voted in favor of states or private companies challenging actions by the Environmental Protection Agency (EPA). He voted for employers and against employees or the National Labor Relations Board in 15 of 17 worker rights cases. He voted against plaintiffs in all seven of the cases involving damage suits against police or abusers. And he voted to narrow antitrust remedies in the two antitrust cases studied.
      Along with other critical reports issued by People for the American Way and the NAACP Legal Defense Fund, Kavanaugh emerges as a judge with little regard for the role that federal courts play in protecting civil and constitutional rights or public welfare over business interests. To fully illuminate Kavanaugh's views, Democratic senators and witnesses testifying against the nomination need to make clear what Kavanaugh will do if confirmed:
      * He will vote to restrict reproductive rights and perhaps to overturn the landmark abortion-rights decision Roe v. Wade. The evidence: Kavanaugh's 2017 speech praising the then-associate justice William H. Rehnquist for his dissent and his further votes as chief justice to overrule the decision.
      * He will vote to limit the EPA's discretion in using its statutory authority to protect the environment. Evidence: his dissent in a decision upholding the agency's authority to regulate greenhouse gases as pollutants.
      * He will vote to make it hard for public interest groups to challenge regulatory agencies for failing to protect consumer safety. Evidence: his opinion in a split decision preventing Public Citizen from suing the National Highway Traffic Safety Administration for a weak motor vehicle safety standard that the group claimed would result over time in 130,000 more deaths than a stronger standard.
      * He will vote to limit independence of federal regulatory agencies. Evidence: his opinion for a divided panel, later reversed by the full court, holding the tenure protection for the director of the Consumer Finance Protection Bureau to be an unconstitutional limit on presidential power.
      * He will vote to limit worker safety protections. Evidence: his dissent from a decision upholding a Labor Department enforcement action against Sea World for failing to protect animal trainers from the risks of killer whales.
      * He will vote to give the government more discretion to withhold agency records' requested under the Freedom of Information Act. Evidence: opinions in three split FOIA decisions, including his majority opinion rejecting an effort by the National Security Archive to obtain the CIA's report from the 1980s on the Bay of Pigs debacle.
      * He will vote to impose obstacles for employment discrimination claims. Evidence: his votes against plaintiffs in each of the 10 split-decision discrimination cases studied.
      * He will vote to give police more discretion to harass innocent citizens. The evidence: his dissent from a decision that found a police officer guilty of an unconstitutional search by going beyond the limits of a permissible stop-and-frisk when he ordered a suspect to unzip his jacket.
      From all accounts, Kavanaugh, the car-pool dad and girls' basketball coach, is immensely likable, but the hearing must carefully examine his judicial philosophy, not his personality, and the consequences for justice if he is confirmed to create the "solid conservative majority" that his Federalist Society sponsors have long longed for.

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