This week, on Thursday, the United States Senate will bring to the floor the confirmation of Brett Kavanaugh to the United States Supreme Court. Over the past several weeks, during his hearing before the Senate Judiciary Committee, the debate has raged over his qualifications and fitness to serve as a justice on this country’s highest court.
First off, Senate Republicans, determined to seat Kavanaugh on the bench before October 1, in time for the beginning of the Court’s term have railroaded this process at break neck speed. Approximately 90% of the documents relevant to the nominees qualifications have yet to be either produced or have been excluded under the guise of the invocation of executive privilege by the White House.
Chairman Grassley oversaw the hearing process with an iron fist, refusing to observe regular process or to recognize points of order.
The nominee himself was extremely obstreperous, refusing to give direct answers to simple questions and referring to almost all legal questions as “hypotheticals” that he would be unable to answer.
But thanks to the limited record that was made available one can gather some insight into the judges passed and how he might likely rule on relevant issues in the future.
While serving on the circuit court judge Kavanaugh wrote in a dissent that while the appeals court was bound to a they Supreme Court rulings that said that the Constitution protects a woman’s right to choose an abortion, those precedents left room for the government to apply “reasonable regulations that do not impose an undue burden.”
Although Kavanaugh has referred to Roe v. Wade as “settled law” he seemed to indicate in an earlier writing that although the court’s decision was precedent that could not prevent the court from tinkering around the edges of the decision.
In a 2015 case regarding employers’ requirements to provide birth control coverage to employees, Kavanaugh dissented from the decision to uphold the requirements of the contraceptive mandate of the ACA, siding with employers who opposed providing birth control for religious reasons. —elite daily
In fact, Kavanaugh tends to side with parties who claim interference with their religious liberties on First Amendment claims. In 2010, atheists challenged the saying of a prayer at presidential inauguration’s and the phrase “so help me God” in the presidential oath of office. A three judge panel simply dismissed the lawsuit saying the plaintiffs lacked standing. Kavanaugh however weighed in on the merits in a dissent where he argued the practice was clearly constitutional, citing the principle that government-sponsored religious speech or prayer at public events where prayers were traditionally said do not violate the First Amendment’s prohibition on establishment of religion as long as the prayers are “not proselytizing or otherwise exploitative.” –New York Times
In 2011, the Court of Appeals for the District of Columbia, the circuit where Kavanaugh works, overruled a challenge to a DC law that required gun owners to register their weapons and band possession of semiautomatic rifles. Kavanaugh dissented, writing that while the government may been fully automatic machine guns, a ban on semiautomatic rifles should be unconstitutional because they “have not traditionally been banned and are common in use by law-abiding citizens for self-defense in the home, hunting and other lawful uses.” He also said that because registration had not traditionally been required for all lawfully possessed guns, that rule should be struck down, also. –New York Times
In Other Areas . . .
- Kavanaugh has repeatedly ruled against government agency findings when challenged by businesses such as dissenting from a ruling upholding Obama’s FCC net neutrality rules; taken a skeptical approach to EPA regulations addressing greenhouse gas emissions;
- Rules for the government and against individuals’ civil rights claims making it more difficult for Guantanamo Bay detainees to bring habeas corpus cases, even when the evidence of their suspected ties to terrorism were weak.
- He refused to answer questions about whether a sitting president could
- be compelled to respond to a subpeona,
- pardon himself,
- And he refused to say that he would recuse himself from any criminal or civil case related to President Trump, who nominated him. ABC News
- And there is the honesty issue as to whether the nominee was truthful in his testimony during the hearing on his appointment to the Circuit Court.
- In 2006, under questioning by the late Dem Senator Ted Kennedy, Kavanaugh said he wasn’t involved in the selection and vetting process of controversial conservative judge William Pryor. Turns out there are now emails proving Kavanaugh was intricately involved in Judge Pryor’s vetting.
- During his 2006 confirmation hearings for the DC Circuit Court of Appeals, under questioning by Dem Senator Patrick Leahy, Kavanaugh outrightly denied ever receiving stolen Dem documents from Republican operative Manuel Miranda. Now during his confirmation hearings to the U.S. Supreme Court, after being confronted with emails between him and Miranda, he finally admitted to Senator Leahy that he did indeed receive the stolen Dem documents.
- Kavanaugh also lied about George W. Bush administration’s “Terrorist Surveillance Program”. Kavanaugh initially testified under oath that he found out about the program through a 2005 New York Times article. Well, turns out there is a 2001 email in which Kavanaugh is asking a DOJ lawyer: “Any results yet on the 4A implications of random/constant surveillance of phone and e-mail conversations of non-citizens who are in the United States when the purpose of the surveillance is to prevent terrorist/criminal violence?”. This again proves that Kavanaugh knew about the terrorist surveillance program way back in 2001.
Mr. Kavanaugh has expressed doubts, in a 2009 law review article, about whether a sitting president should be subjected to investigations and as to whether sitting presidents could be indicted, which is troubling given the political chaos in Washington and the possibility that such matters could likely come before the Supreme Court in the near future at a time when Kavanaugh, should he be confirmed, could cast the swing vote on these issues.
With 12 years of service on the Court of Appeals and more than 300 written decisions under his belt, there can be no question that Justice Kavanaugh knows how to be a judge. The question then, is whether he is “fit” for the job.
Bernie Madoff unquestionably was qualified to trade stocks on Wall Street, Richard Nixon was qualified to serve as president, but were they “fit” for the job? No. Given Mr. Kavanaugh’s personal leanings on all of the topics listed above, I say no. This is a job interview. We get to weigh resumes, examine past performance in deciding who to hire.
I don’t think he meets the test.
In case you were wondering . . .