Kavanaugh is a right-wing hack whose opinions on cases depend less on “settled law” than on whether the plaintiffs are Republicans or Democrats.
Although it’s been widely reported that he thinks presidents should be immune from pesky things like subpoenas and prosecutorial scrutiny, he held a different opinion back when he was helping Ken Starr investigate Bill Clinton. Josh Marshall:
Kavanaugh was a young legal gun (early 30s) on one of the most thoroughly corrupt and brazenly partisan investigations in American history, the do-over Independent Counsel investigation which Ken Starr ran for most of the 1990s, investigating almost every aspect of Bill Clintonâ€™s time in office and the decades which preceded his presidency. Kavanaugh, in addition to being part of the investigation, was alsoÂ a or the principal author of the notoriousÂ Starr Report, a voluminous and gratuitous play-by-play narration of the Clinton-Lewinsky Affair and a brief for impeachment.
In that document, Kavanaugh argued for a comically broad theory of what constituted obstruction of justice and impeachable offenses. He suggested that Clintonâ€™s efforts to delay being interviewed by the Independent Counsel amounted to obstruction of justice and that lying to his staff and the American people were impeachable offenses. Needless to say, by this standard, President Trump commits numerous impeachable offenses every single day.
But of course, his supporters say, he is more mature now.
Many commentators are now arguing that the youthful Kavanaugh had one view while the more seasoned District Court Judge saw the matter differently a decade later. Please. Kavanaugh showed a judicious flexibility to allow his views to evolve as they were applied to either Democrats or Republicans, to political foes or friends. There is nothing more pressing and relevant in this political moment than the Presidentâ€™s subservience to the rule of law. Kavanaugh has been all over the map on that question, depending on whether the President was a Republican or Democrat. That all needs to be sorted out before he becomes the deciding vote on whether President needs to answer to the law.
Democrats mustÂ poundÂ Kavanaugh with this in the Senate hearings. If they don’t … well, then, there’s no point to them, is there?
It should go without saying that Kavanaugh is entirely on board withÂ Citizens UnitedÂ jurisprudence, weaponizing the Court against organized labor and finally overturningÂ Roe v WadeÂ in its entirety. But we should not overlook his focused opposition to the Affordable Care Act and the way he is likely to use his power on the Court to further gut the law and send us back to the era of no coverage for pre-existing conditions.
Susan Collins has said that she would be loathe to vote for nominee who would overturn Roe, but of course they’re not supposed to directly ask nominees if they would overturn Roe, because somebody made up that rule sometime and they all abide by it. But Kavanaugh has history.
In a high-profile case involving abortion late last year, KavanaughÂ wrote in dissentÂ of a decision from the DC Circuit’s full bench to permit a 17-year-old undocumented immigrant toÂ seek an abortion while in federal custody.
The Trump administration had denied the teen’s request, saying it did not want to be “facilitating” abortions for unaccompanied minors. Kavanaugh argued that the majority “badly erred” in their decision to allow the process anyway.
He characterized the ruling as creating a new right for undocumented immigrant minors in US custody to receive “immediate abortion on demand.”
Kavanaugh, along with two GOP-appointed colleagues wrote: “The Government has permissible interests in favoring fetal life, protecting the best interests of a minor, and refraining from facilitating abortion,” adding that the decision was “a radical extension of the Supreme Court’s abortion jurisprudence.”
This previous case may indicate how he could rule in future cases involving abortion.
May indicate? It’s a freaking 90-f00t-high flashing neon sign saying that he’ll vote against reproductive rights at every opportunity.Â They might as well put the statue of Justice Taney back on the lawn in Maryland if crap likeÂ KavanaughÂ is sitting on the Court.
Senate Democrats need to use the confirmation process to explain to Americans how their Constitution is about to be hijacked by a small group of conservative radicals well funded by ideological and corporate interests, and what that means in terms of the rights they will lose and the laws that will be invalidated over the next several decades.
Weâ€™re witnessing right now a global movement against the idea of liberal democracy and, in places likeÂ HungaryÂ andÂ Poland, its grounding in an independent judiciary. Mr. Trump and Senate Republicans appear happy to ride this wave to unlimited power. They will almost certainly win this latest battle, but itâ€™s a victory that will come at great cost to the nation, and to the courtâ€™s remaining legitimacy.
Americans who care about the courtâ€™s future and its role in the American system of government need to turn to the political process to restore the protections the new majority will take away, and to create an environment where radical judges canâ€™t be nominated or confirmed. As those tireless conservative activists would be the first to tell you, winning the future depends on deliberate, long-term organizing in the present, even when â€” especially when â€” things appear most bleak.
It would take a miracle to keep this creep off the Court, but at least I want to see Democrats make an all-out fight of it.