Kavanaugh Is The Wrong Nominee For Our Times

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Above: Demonstrators protest outside of Supreme Court after Judge Brett Kavanaugh was chosen by President Trump as his nominee for the high court. From FOX 45 DC twitter.

The Kavanaugh confirmation process has been a missed opportunity for the United States to face up to many urgent issues on which the bi-partisans in Washington, DC are united and wrong.

Kavanaugh’s career as a Republican legal operative and judge supporting the power of corporations, the security state and abusive foreign policy should have been put on trial. The hearings could have provided an opportunity to confront the security state, use of torture, mass spying and the domination of money in politics and oligarchy as he has had an important role in each of these.

Kavanaugh’s behavior as a teenager who likely drank too much and was inappropriately aggressive and abusive with women, perhaps even attempting rape, must also be confronted. In an era where patriarchy and mistreatment of women are being challenged, Kavanaugh is the wrong nominee for this important time. However, sexual assault  should not be a distraction that keeps the public’s focus off other issues raised by his career as a conservative political activist.

A demonstration against the Supreme Court nomination of Judge Brett M. Kavanaugh outside the Capitol this month. Credit Erin Schaff for The New York Times

The Security State, Mass Spying and Torture

A central issue of our era is the US security state — mass spying on emails, Internet activity, texts and phone calls. Judge Kavanough enabled invasive spying on everyone in the United States. He described mass surveillance as “entirely consistent” with the US Constitution. This manipulation of the law turns the Constitution upside down a it clearly requires probable cause and a search warrant for the government to conduct searches.

Kavanaugh explained in a decision, “national security . . . outweighs the impact on privacy occasioned by this [NSA] program.” This low regard for protecting individual privacy should have been enough for a majority of the Senate to say this nominee is inappropriate for the court.

Kavanaugh ruled multiple times that police have the power to search people, emphasizing “reasonableness” as the standard for searching people. He ruled broadly for the police in searches conducted on the street without a warrant and for broader use of drug testing of federal employees. Kavanaugh applauded Justice Rehnquist’s views on the Fourth Amendment, which favored police searches by defining probable cause in a flexible way and creating a broad exception for when the government has “special needs” to search without a warrant or probable cause. In this era of police abuse through stop and frisk, jump out squads and searches when driving (or walking or running) while black, Kavanaugh is the wrong nominee and should be disqualified.

Kavanaugh also played a role in the Bush torture policy. Torture is against US and international law, certainly facilitating torture should be disqualifying not only as a justice but should result in disbarment as a lawyer. Kavanaugh was appointed by President Trump, who once vowed he would “bring back waterboarding and … a hell of a lot worse than waterboarding.” Minimizing torture is demonstrated in his rulings, e.g. not protecting prisoners at risk of torture and not allowing people to sue the government on allegations of torture.

Torture is a landmine in the Senate, so Kavanaugh misled the Senate likely committing perjury on torture. In his 2006 confirmation, he said he was “not involved” in “questions about the rules governing detention of combatants.” Tens of thousands of documents have been kept secret by the White House about Kavanaugh from the Bush era. Even so, during these confirmation hearings documents related to the nomination of a lawyer involved in the torture program showed Kavanaugh’s role in torture policies leading Senator Dick Durbin to write“It is clear now that not only did Judge Kavanaugh mislead me when it came to his involvement in the Bush Administration’s detention and interrogation policies, but also regarding his role in the controversial Haynes nomination.” 

Durbin spoke more broadly about perjury writing: “This is a theme that we see emerge with Judge Kavanaugh time and time again – he says one thing under oath, and then the documents tell a different story.  It is no wonder the White House and Senate Republicans are rushing through this nomination and hiding much of Judge Kavanaugh’s record—the questions about this nominee’s credibility are growing every day.” The long list of perjury allegations should be investigated and if proven should result in him not being confirmed.

This should have been enough to stop the process until documents were released to reveal Kavanaugh’s role as Associate White House Counsel under George Bush from 2001 to 2003 and as his White House Staff Secretary from 2003 to 2006. Unfortunately, Democrats have been complicit in allowing torture as well, e.g. the Obama administration never prosecuted anyone accused of torture and advanced the careers of people involved in torture.

Shouldn’t  the risk of having a torture facilitator on the Supreme Court be enough to stop this nomination?

Protesters show there are a lot of reasons to reject Kavanaugh. Photo from NARAL Twitter

Corporate Power vs Protecting People and the Planet

In this era of corporate power, Kavanaugh sides with the corporations. Ralph Nader describes him as a corporation masquerading as a judge.  He narrowly limited the powers of federal agencies to curtail corporate power and to protect the interests of the people and planet.

This is evident in cases where Kavanaugh has favored reducing restrictions on polluting corporations. He dissented in cases where the majority ruled in favor of environmental protection but has never dissented where the majority ruled against protecting the environment. He ruled against agencies seeking to protect clean air and water. If Kavanaugh is on the court, it will be much harder to hold corporations responsible for the damage they have done to the climate, the environment or health. 

Kavanaugh takes the side of businesses over their workers with a consistent history of anti-union and anti-labor rulings. A few examples of many, he ruled in favor of the Trump Organization throwing out the results of a union election, sided with the management of Sheldon Adelson’s Venetian Casino Resort upholding the casino’s First Amendment right to summon police against workers engaged in a peaceful demonstration — for which they had a permit, affirmed the Department of Defense’s discretion to negate the collective bargaining rights of employees, and overturned an NLRB ruling that allowed Verizon workers to display pro-union signs on company property despite having given up the right to picket in their collective bargaining agreement. In this time of labor unrest and mistreatment of workers, Kavanaugh will be a detriment to workers rights.

Kavanough opposed the Federal Communications Commission (FCC) ruling in favor of net neutrality, which forbids telecom companies from discrimination on the Internet. He argued net neutrality violated the First Amendment rights of Internet Service Providers (ISP) and was beyond the power granted to the FCC. He put the rights of big corporations ahead of the people having a free and open Internet. The idea that an ISP has a right to control what it allows on the Internet could give corporations great control over what people see on the Internet. It is a very dangerous line of reasoning in this era of corporations curtailing news that challenges the mainstream narrative.

In 2016, Kavanaugh was asked if he believed that money spent during campaigns represents speech, and is protected by the First Amendment and answered: “Absolutely.”  Kavanaugh joined in decisions and wrote opinions consistent with efforts to oppose  any attempt by Congress or the Federal Elections Commission to restrict campaign contributions or expenditures. His view that free speech allows unrestricted money in elections will add to the avalanche of big money politics. Wealthy elites and big corporations will have even greater influence with Kavanaugh on the court.

Kavanaugh will be friendly to powerful business and the interests of the wealthy on the Supreme Court, and will tend to stand in the way of efforts by administrative agencies to regulate them and by people seeking greater rights.

Kavanaugh protesters call for his rejection over sexual assault call to Believe Survivors by Carol Kaster Associated Pres

Women’s Rights, Abortion and Sexual Assault

Judge Kavanaugh has not ruled on Roe v. Wade and whether the constitution protects a woman’s right to have an abortion. In 2017, Kavanaugh gave a Constitution Day lecture to the conservative American Enterprise Institute where he praised Justice Rehnquist and one of the cases he focused on was his dissent in Roe. Rehnquist opposed making abortion constitutionally protected, writing, it was not “rooted in the traditions and conscience of our people.”  Shortly after that speech, Kavanaugh wrote a dissent that argued an immigrant minor in government detention did not have a right to obtain an abortion.

On the third day of his confirmation hearings, Judge Brett Kavanaugh seemed to refer to the use of contraception as “abortion-inducing drugs.” It was a discussion of a case where Kavanaugh dissented from the majority involving the Priests for Life’s challenge to the Affordable Care Act (ACA). Kavanaugh opposed the requirement that all health plans cover birth control, claiming that IUDs and emergency contraception were an infringement of their free exercise of religion. 

Kavanaugh clerked for Judge Kosinski who he describes as a mentor. Kosinski was forced to resign after being accused of harassing at least 12 women in the sanctity of his judicial chambers. Kavanaugh swears he never saw any signs that the judge was sexually harassing women, but the Democrats did not ask a single question about it.

Multiple accusers have come forward to allege Kavanaugh’s involvement in sexual assault and abuse. While Dr. Christine Blasey Ford is viewed as credible – she was the only witness allowed to testify – it is not clear these allegations will be thoroughly reviewed. After being approved by the committee, the Republican leadership and President Trump agreed on a limited FBI investigation. It is unclear whether the FBI will be allowed to follow all the evidence and question all the witnesses. As we write this newsletter, the outcome has yet to unfold but Jeffrey St. Clair at Countpunch points out, “the FBI investigation will be overseen by director Christopher Wray, who was two years behind Brett-boy at both Yale and Yale Law. After graduation, they entered the same rightwing political orbit and both took jobs in the Bush Administration. How do you think it’s going to turn out?”

Why don’t Democrats, as Ralph Nader suggests, hold their own hearing and question all the witnesses? If there is corroborating evidence for the accusers, Kavanaugh should not be approved.

A Republican Political Operative As A Justice?

Kavanaugh has been a legal operative for the Republican Party involved in many high profile partisan legal battles. He spent three years working for Ken Starr on the impeachment of Bill Clinton where he pressed Starr to ask Clinton sexually graphic details about his relationship with Monica Lewinisky. He tried to expand the Starr investigation into the death of Vince Foster, whose death had been ruled a suicide. He was a lead author of the infamous Starr Report—widely criticized as “strain[ing] credulity” and being based on “shaky allegations.”

Kavanaugh was one of George W. Bush’s lawyers in the litigation after the election in 2000, which sought to block a recount of ballots in Florida, resulting in a decision that handed the presidential election to Bush. In the Bush administration, he was involved in pushing for conservative judges as well as controversial policies like torture.

During his confirmation process, in response to the accusations of assault, he claimed they were “a calculated and orchestrated political hit” and “revenge on behalf of the Clinton’s.” He demonstrated partisan anger and displayed a lack of judicial temperament, making him unfit to serve on the Supreme Court. 

Kavanaugh exposes the true partisan nature of the highest court, which is not a neutral arbiter but another battleground for partisan politics. The lack of debate on issues of spying, torture and more shows both parties support a court that protects the security state and corporate interests over people and planet. Accusations of sexual assault must be confronted, but there are many reasons Kavanaugh should not be on the court. The confirmation process undermines the court’s legitimacy and highlights bi-partisan corruption.

 

  • ari9999

    Kavanaugh’s financial disclosures point to potential tax and reporting crimes. (For context, see my earlier comment submitted for posting.)

    If this line of thinking proves at all valid, or even possibly valid, then it could be an enormous wild card that does an end run (pardon the mixed metaphor) around Trump, the hands-tied FBI, and the Senate Judiciary Commttee.

    To multiply my metaphor mixing, it could be the desperate Hail Mary play that saves the day — for We the People. (Hail Mary could be ironically appropriate because Kavanaugh is Catholic and likely Irish.)

    Okay, enough playing around. Here goes:

    Kavanaugh is a Maryland resident. Brian Frosh, Maryland’s attorney general, is a Democrat. Both houses of the state legislature have strong Democratic majorities.

    Maryland appears to have a 3-year statute of limitations on certain financial crimes, including tax-related crimes. According to the Luppe B Luppen 9/13/18 analysis in Yahoo News I previously cited, some of K’s apparent financial shenanigans occurred within the past 3 years.

    Thus we have our potential Hail Mary wild card: a Maryland state investigation and indictment based on probable cause of financial crimes.

    Obviousy things would have to move very fast. If the Maryland AG found probable cause, could he hand down an indictment to at least delay a potential felon from joining the US Supreme Court?

    If so, then Maryland AG Frosh could become America’s unlikely and unexpected hero, single-handedly preventing 40 years of disastrous decisions from an inherently corrupt Supreme Court Justice who has absolutely no business being there.

    Think about that. Then get that Hail Mary play going. What are we waiting for?!

  • chetdude

    Truth be known Roberts, Alito, Thomas, Gorsuch, Kennedy and Kavanaugh are so entirely out of the mainstream of essential USAmerican thought, values and opinion that NONE of them should be on the Court.

    In fact, as far as corporate rights vs. human rights, Kagan and Breyer are out of the mainstream as well… Except for a couple of social wedge issues, they are often more heavily weighted by training and temperament toward “corporate” over Human Rights…

    I’d say that Ruth Bader Ginsberg and possibly Sotomayor are the ONLY Mainstream Justices on the Court…

    Of course, that execrable situation is the norm. In the entire history of the Court only the Warren Court from 1953 – 1969 possessed any Humane tendencies…

  • il corvo

    Thanks for bringing it all together, very good article.

  • Linda Jansen

    Yes, and Ginsberg was buddy-buddy with Scalia too. So you have to wonder …

  • jemcgloin

    Yes. The mission of the left should be to save the Constitution from the anti-constitution party.

  • chetdude

    Since the Constitution is a squishy, self-contradictory document that sets forth an undemocratic framework designed to protect and expand the wealth, power and privileges of the few (those who designed it) with minimal if any (and easily bypassed) “protections” for the many, the mission of the Left should be to eventually bypass and/or replace it with a much better and sustainable, humane socioeconomic systems…

  • chetdude

    As I remember, Scalia and Ginsberg were/are both opera buffs…thus their “friendship”…

    Interestingly Thomas, Roberts, Alito, Gorsuch and Kavanaugh (and anyone else Trump would nominate from the “list”) are all creatures of Fat Tony Scalia’s deeply regressive dementia and the Federalist Society he co-founded…

    NO ONE with Federalist Society connections should be allowed on SCOTUS…

  • Changeneededbadly

    Good article. I agree serious vetting is a must but it has never really materialized for any politician or justice , hence, the situation we find ourselves in today. Getting the citizenry educated, engaged and focused on key issues seems a monumental task that many aren’t suited for. It isn’t hard to see the outcome, as long as this persists and critical questions remain unaddressed.

  • jemcgloin

    Yes, but there are two paths to get there.
    One way its to use the Amendment framework to slowly move the Constitution in the right direction, as out already has by ending slavery, making everyone born here a citizen, giving women the vote, etc.. The other is to have a violent revolution which, if history is any guide, its more likely to put us back two steps than forward one step.
    If the left can’t get behind a politician to vote for, what military leader are you going to follow into battle?
    How long do you think you will last against the full might of the US military?
    Do any of your own an assault rifle? Do any off you train military tactics. Do you know how to engage in hand to hand combat with highly trained soldiers?
    It took 500 years of struggle to get from monarchy and actual empire to the “illusion of , democracy” and corporate empire.
    Under monarchy, dissidents are tortured to death in the public square with the entire town watching.
    Under the illusion of democracy, dissidents are roughed up a little and spend the night in jail.
    The problem with the Constitution is not what it says. The problem with the Constitution is that We the People don’t do the hard work of making sure the politicians implement it correctly.
    To have the left attacking the Constitution, which is essentially a left document.instead of consistently working to implement it and improve it is insane.
    Do you think direct democracy would be better, if the left still refused to vote. Then the Party of Trump would just vote to murder us all tomorrow, and there would be no court to say it was unconstitutional at all.

  • chetdude

    Both of the “two paths” you propose deal with symptoms while they leave the underlying disease untouched. You’re stuck in the dominator paradigm…

    Read Peter Joseph’s “The New Human Rights Movement” to gain an understanding of the systemic disease. It’s not an easy read but it’s all there!

    Only a true 2nd path — a change in the “Zeitgeist” — a critical mass disengaging from and removing permission from the dominant paradigm to rule — will bring about substantive, pro-active, positive change…

    (PS: The Constitution is not a “left” document, it’s firmly rooted as another implementation of dominator hierarchies.)

  • Alan MacDonald

    While this comment in the PR Newsletter is certainly true, “The hearings could have provided an opportunity to confront the security state, use of torture, mass spying and the domination of money in politics and oligarchy as he has had an important role in each of these.” —- it might have been even more ‘hard hitting’ in this era/error of Emperor Trump if it had a single word changed to reflect the real abusing power and tyranny of the Emperor Trump, “The hearings could have provided an opportunity to confront the security state, use of torture, mass spying and the domination of money in politics and Empire as he has had an important role in each of these.”

    I’ve written quite a bit in the “Times” to ‘expose’ the deceits and lies of both Emperor Trump and his imperialist-minded and unhinged faux SCOTUS judge, Brett ‘Prep-boy’ Kavanaugh (sorry Kevin but these links from today [10/4/18] to the “Times” may need some approval fixes:

    https://www.nytimes.com/interactive/2018/10/03/opinion/kavanaugh-law-professors-letter.html?comments#permid=28881903

    https://www.nytimes.com/interactive/2018/10/03/opinion/kavanaugh-law-professors-letter.html?comments#permid=28881040:28882875

    And here’s an earlier commentary [9/28/18] regarding the testimony of Prof. Ford and prevaricator, Brett Kavanaugh — but IMHO the meta-issue above this and all the hundreds of such subordinate ‘issues’ is the overall storm system of this Disguised Global Capitalist EMPIRE — threatening our world in all respects; economic, corporate, militarist, environmental, racially, et al.:

    https://www.nytimes.com/2018/09/27/opinion/why-brett-kavanaugh-wasnt-believable.html?comments#permid=28798120

  • chetdude

    Joe Manchin – DINO must pay for his vote…

  • jemcgloin

    When the Constitution was written, conservatives wanted to stay with monarchy and the Constitution represented the new Enlightenment “Zeitgeist,” And as the zeitgeist changed, the Amendment process was able to keep the Constitution moving with it.
    The world economy cannot support 7 billion people without decision making processes, so you need to have actual systems in place.
    What systems are you proposing? How do you expect to implement them?

    George Washington was a conquering general. Pretty much every other conquering general in the history of civilization made themselves king, and they were the law. George Washington made himself president and helped create a system of laws, so that we could be ruled through reason, not the whim of the king. That is a left idea.

    Trump wants to undo that and have government based on his whims. And the Republican Party is all for it.
    I understand that the Constitution contains many injustices, and that much of what it says is not in practice.

    But if you think just disengaging from the political process will save you, then you haven’t been paying attention as community after community of people just minding their business have been destroyed by massive armies controlled by global corporations, Going back to the East India Company.

    We the People can control the armies (imperfectly) or We can be controlled by the armies.

  • chetdude

    The Planet cannot support 7 billion humans PERIOD…That’s the bottom line existential issue…

    How to deal with it – END dominator hierarchies and their tools…

    How to do that, CHANGE ENOUGH MINDS…

    The relatively irrelevant mechanisms you detail is just scrambling to rearrange the deck chairs on the fantail of the Titanic…

    Alternative, probable species extinction within 100 years…and massive human misery along the way…

  • jemcgloin

    We already have 7 billion humans, so unless you want to murder a few billion, then we need to find a way.

    I’m an anarchist at heart, but you need to do more than take down systems, you have to build systems that work better.

    If you take down one hierarchical system without another system to replace it, a more violent dominator hierarchy will take its place.

    We went to Iraq without enough troops to maintain order. Then we fired the military and the police. This lack of top down hierarchy did not result in peace love and mutual aid. It resulted in mass murder, torture, and struggles for dominance, not to mention ISIS.

    If all of the NYC cops quit tomorrow, mafias and street gangs would war over turf and shake down everyone on their turf.

    Without a true system of justice that can keep this from happening, you will have replaced a working system with abuses, for violent chaos, undoing centuries in gains in controlling government violence.
    If you don’t believe the police are better than random gangs, go to a gang controlled neighborhood, find them attacking someone and start videoing them with your phone. Police might beat you up and arrest you. Gangs will just riddle you with bullets.

    In order for humans to be honest enough and trusting enough to create Justice without violence, they will need to slowly improve existing systems. Going back to Hobbesian “nature” would be going backwards.

  • chetdude

    Thanks to “feeding them” (about 1/3 at subsistence level or less) using the last of the cheap fossil-fuels while polluting our environment, we have 7 1/2 billion humans on the Planet. We are rapidly consuming the MUSCLE of the Planet since we’ve burned through the fat…

    Earth Overshoot Day came on August 1st this year — 3 days earlier than last year.

    For a thorough understanding of the systemic disease I highly recommend “The New Human Rights Movement” by Peter Joseph. You can get an idea by viewing some of his interviews on line…

    Systems that work better are already being tried in limited spaces and limited amounts even though they are stewing in, are limited and actively opposed by the dominant paradigm.

    We must actively oppose in every way we can those who benefit most from the dominant paradigm…

    If we don’t rapidly and humanly replace the dominator hierarchy with something better, Mother Nature will rapidly reduce the population for us – and not very humanely…

  • jemcgloin

    Unfortunately the Party of Trump wants to go back to 12th century theocracy ruled by corporate overlords. If the left voted, we would win.

  • chetdude

    Ah, my friend. If we all voted for the 2018 variety of “Democrat”, what exactly would we win?

    Didn’t we see an example of it in 2009-2011 (when the “left” voted in vast numbers). That brought us the bail-out of the banksters, the sick care industry and global capitalists (the corporate overlords) while doing nothing substantive for We the People and then enabled the republican take-over…

    We must change minds not the partisan initial behind the employees of the Oligarchy/the dominators…

  • jemcgloin

    Then vote for a third party. Why does the left believe it when we are told by corporate media that voting for a third party is a waste?

  • kevinzeese

    Good point. I find voting for one of the two corporate parties to be a wasted vote. They represent Wall Street, big business and war-makers, not my interests. How does voting for what you don’t want use your vote well? The only way to use your vote is to vote for what you actually want. If more people did this we would have a very different government.

  • chetdude

    I’ve voted almost exclusively “3rd” party (actually non-Duopoly) for over 40 years with very few exceptions.

    Until I realized that without a massive People’s Movement, voting is irrelevant…

  • jemcgloin

    How about a massive people’s movement aimed at defeating the two corporate parties at the polls acts talking away their power?
    As long as everyone that hates both Republicans and Democrats doesn’t vote, then the two corporate parties win. There are more people that don’t vote than vote for either party.
    History is shifting. Both major parties are weak and hated.
    How do we take advantage of this opportunity, instead of letting them make things worse.

  • kevinzeese

    Many of us having been trying to develop that for a long time. I left the Dems 25 years ago and have never regretted it. But, the two parties have created highly manipulated elections that make it almost impossible for an independent or third party candidate to compete in elections. The systems is rigged and rigged very well in a sophisticated way. Two-thirds of people have wanted a third party since the beginning of this century, but the system suppresses such efforts very effectively.

  • chetdude

    The One Big Party with two right-wings is a symptom of the underlying disease…

    A massive People’s Movement that’s educated in the root causes and pathological processes of that disease and willing and able to stamp it out is the cure…