In Condemnation of Brett Kavanaugh: The Most Unpopular Supreme Court Nominee in American History

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As the Senate confirmation hearing begins to near its close, the American public has increasingly soured on an already historically unpopular nominee for the nation’s highest court. The American public is clearly wary of a man who deems the rights of women, American consumers, and the rule of law as too robust. Ranging from Mr. Kavanugh’s ruling in the PHH Corp. v. Consumer Financial Protection Bureau case, a dangerous view on the reproductive rights of women, and his belief that the President has a legal right to an imperial presidency – transcending the rule of law and above our system of checks and balances. It is not a result of Mr. Trump’s dismal approvals that Mr. Kavanaugh is historically unpopular, but a result of Mr. Kavanaugh’s own dismal and deleterious dogma that must be voted down.

Mr. Kavanugh presents himself clearly and effectively, but what he presents should worry the American public. The rulings that Mr. Kavanaugh has made and the decisions that he’s written are disconcerting. Mr. Kavanaugh’s opinion in PHH Corp. v. Consumer Financial Protection Bureau (CFPB) presents a partisan and injudicious undermining of consumer and civil rights. In Mr. Kavanaugh’s own words, executive branch agencies – like the CFPB and Environmental Protection Agency (EPA) –  present a “gross departure from settled historical practice” and describes all independent executive agencies as a “headless fourth branch of the US government.” These institutions, however, are not “headless,” rudderless, or omnipotent monoliths. They provide critical protections and regulations for consumers and the American public. Similarly, Mr. Kavanaugh’s dissent in the case of SeaWorld of Florida v. Perez presents a discouraging defense of corporate power and negligence. Following the 2-1 Circuit Court’s ruling in favor of Mr. Perez and the Department of Labor – keeping in line with established court precedent dating to the 1984 case Chevron v. Natural Resources Defense Council – Mr. Kavanugh lambasted the decision in his dissent, stating that the agency had “stormed headlong into a new regulatory arena” and warned that regulators would try to impose new safety requirements on sports, the circus and more. Mr. Kavanaugh’s view of the nation’s regulatory agencies are strongly consistent with the President’s and his administration’s paranoid and unsubstantiated hatred and fear of those agencies that protect the American people. Confirming Mr. Kavanaugh would only further enable the President and wreak havoc on this nation long after the President’s tenure in office is over.

The power behind the Supreme Court has been Justice Kennedy, a decisive swing vote in several critically significant and profound decisions from Obergefell v. Hodges, Citizens United v. FEC, and Fisher v. Texas to cases that have defended women’s rights and reproductive health, including Planned Parenthood v. Casey and Whole Woman’s Health v. Hellerstedt. With the retirement of Mr. Kennedy, many Conservatives – including the four Conservative justices appointed by Republican presidents – see a prime opportunity to roll back our human rights. “Justice Kennedy’s retirement from the Supreme Court marks a pivotal moment for the fight to ensure every unborn child is welcomed and protected under the law,” Susan B. Anthony List president Marjorie Dannenfelser said in a statement. In the past, Mr. Trump has made it clear that his priority is to appoint justices that will aim to overturn Roe v. Wade. With the confirmation of one justice already in the books, Mr. Trump and Mr. McConnell will seek to finish off the job with the appointment and confirmation of Mr. Kavanaugh to the court. Mr. Kavanaugh has demonstrated an uncanny willingness to revoke the constitutionally guaranteed rights of Americans. In his dissent of the majority decision in Garza v. Hargan, Mr. Kavanaugh writes that “the government has permissible interests in favoring fetal life, protecting the best interests of a minor, and refraining from facilitating abortion.” With the confirmation of Mr. Kavanaugh, the Supreme Court will almost certainly overturn Roe v. Wade, overturning 45 years of precedent.

Mr. Kavanugh first became a star in the eyes of the Republican establishment with his role in Ken Starr’s investigation into Bill Clinton’s “obstruction of justice” case which would lead to the former President’s impeachment. Now, twenty years later, his position has significantly changed. “I believe that the president should be excused from some of the burdens of ordinary citizenship while serving in office,” Kavanaugh writes. “We should not burden a sitting president with civil suits, criminal investigations, or criminal prosecutions.”  As Senator Chris Coons put it bluntly when he said President Donald Trump had nominated Kavanaugh with “an eye towards protecting himself.” Of all the unfortunate, misguided, and dangerous beliefs of Mr. Kavanaugh and the potential power he may hold as a swing vote for the court in replacing Mr. Kennedy, his conflicting and hypocritical belief in executive power being above reproach proves as the most serious of the issues that I have thus far outlined. Mr. Mueller’s probe into Russian interference in the 2016 Presidential election could be undermined by the Supreme Court, and the system of checks and balances established to defend and strengthen democracy may be under fire as a result of Mr. Kavanaugh’s appointment to the Supreme Court.

Democracy may be at stake.


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