RUTGERS AMERICAN CONSTITUTION SOCIETY: Supreme Court must be taken seriously
Opinions Column: Constitutionally Concerned
Hearings for President Donald J. Trump’s supreme court nominee, Brett Kavanaugh, concluded on Friday on Capitol Hill. Kavanaugh is currently a judge on the United States Court of Appeals for the District of Columbia Circuit (D.C. Circuit), appointed by former President George W. Bush. The current nomination process can be characterized as spectacle driven.
Initially, the White House kept many of Kavanaugh’s correspondences secret from the members of the Senate Judiciary Committee. But the night before the hearings started, on Labor Day, the White House released 42,000 documents, essentially making it meaningless, giving senators no time to review the contents. Beyond that, this is a stark contrast to the nomination hearings of Justice Elena Kagan, who, as Solicitor General for former President Barack Obama's administration, also had documents subject to review. This is only a small part of what makes the current rush to confirm Kavanaugh unusual.
Trump promised to “drain the swamp,” but Kavanaugh is no outsider. His father was a top lobbyist for the cosmetics industry who pushed heavily for deregulation — often at the expense of consumer safety. His mother was an associate judge in Maryland, whose appointment was backed by the then-Democratic House Speaker Tip O’Neill. Kavanaugh served as Judge Walter King Stapleton’s clerk in the Court of Appeals for the Third Circuit. Kavanaugh also served as a fellow with former U.S. Solicitor General Ken Starr in 1992. He then clerked for former Justice Anthony Kennedy alongside now-Justice Neil Gorsuch and future-Judge Gary Feinerman.
As the president’s nominee, Kavanaugh has met the president’s standards, which will just make him another step forward in pressing Trump’s far Right agenda. With a conservative bench, generations of Americans could lose many freedoms and protections that the Right has been trying to strip away for decades.
Years after just barely scraping by with enough votes for confirmation to the D.C. Circuit court, Sen. Patrick Leahy (D-Vt.), chairman of the Judiciary Committee, and Sen. Dick Durbin (D-Ill.), a committee member, accused Kavanaugh of misleading the committee and the American people during the hearings. He testified he was not involved in formulating the Bush White House’s detention and interrogation policies in Guantanamo Bay, Cuba during his time working for the administration. In fact, he was involved in at least one conversation regarding detainees’ rights to counsel.
As a private lawyer, Kavanaugh wrote an amicus brief for the Center for Equal Opportunity, a racist organization thinly veiled as an anti-affirmative-action organization, in a case involving Native Hawaiians, Rice v. Cayetano. He analogized the affirmative action plan to the “separate but equal” doctrine upheld in Plessy v. Ferguson, essentially lending support to the “reverse racism” myth.
Kavanaugh’s opinions on cases involving excessive force by law enforcement, qualified immunity and the Fourth Amendment tend to favor prosecution. He has praised former Justice William Rehnquist’s expansion of law enforcements’ right to search without a warrant or individualized suspicion. In one case, officers arrested every partygoer for unlawful entry, even though they had no probable cause. Kavanaugh dissented, stating that officers “at least reasonably could have believed that they had probable cause” and that officers can make reasonable judgments to “disbelieve protests of innocence.” What do you think this means to you as a college student on a Friday night?
Kavanaugh dissented at least three times when the court upheld the Affordable Care Act. He dissented in 2015 in favor of religious rights organizations, arguing that the Affordable Care Act’s mandated contraceptive coverage infringed on religious freedom. In October 2017, Kavanaugh joined the notorious decision that found the Office of Refugee Resettlement could prevent an unaccompanied minor in its custody from obtaining an abortion. He also praised Rehnquist’s dissent in Roe v. Wade. He recently equated birth control with abortions. How will this affect the relative ease with which we access birth control today?
He rejected the challenge to the National Security Agency’s warrantless collection of digital information from phones. He argued these methods, exposed by Edward Snowden, were “entirely consistent” with the Fourth Amendment. What does this mean if you are arrested at a protest or even at a party?
In 2016, Kavanaugh opined that employers can require their workers to waive their right to strike in arbitration agreements. This clear preference for companies over unions will likely escalate the Supreme Court’s trend of favoring big corporations. How will this affect you as you enter the job market in the years to come?
Kavanaugh’s nomination likely means that Trump’s abuses of power will go unchecked. Kavanaugh believes in the unitary executive theory. Under this theory, the president has full responsibility for the execution of federal laws and is able to control all agency officers.
So what can you, a student at Rutgers University, do?
Call your senators, Sen. Bob Menendez (D-N.J.), (202) 224-4744, and Sen. Cory Booker (D-N.J.), (202) 224-3224. If you are not from New Jersey, the Senate switchboard operator will connect you with the correct office if you call this number: (202) 224-3121.
If you are nervous to make a phone call, write your senator a letter.
Encourage your family and friends to become engaged in the process, especially if they live in any of the following states: West Virginia, Indiana, North Dakota, Alaska, Maine or Alabama. Kavanaugh’s lifetime position on the Supreme Court will be determined by the votes of the senators from these states.
Make sure you are registered to vote and make a plan to vote on Nov. 6. The deadline to register for New Jersey is Oct. 16. If you live on campus or right off campus, you can either apply for a mail-in ballot or re-register to the county in which your dorm or off-campus residence is located.
In the end, do not become complacent. No matter which side of the aisle you align yourself with, the process matters. Respect for office matters. Qualifications matter. Your voice and your fellow citizens’ voices matter.
Emma Pallarino, Andreina Mazzei and Mickey Vargas make up the Executive Board of the Rutgers Law School - Newark branch of the American Constitution Society. Their column, "Constitutionally Concerned," runs on alternate Mondays.