Against Reason: The Kavanaugh Nomination

Marriage equality. Reproductive rights. The right to privacy. Racial justice. These are just a few of the landmark decisions that have come out of the U.S. Supreme Court. These decisions affirmed liberties, rights, and above all else, furthered the cause of justice. These decisions are linked with many others of their kind, and they share a common thread: the principles of the Justices who made them possible — fairness, equity, and an ethical and moral interpretation of law.

These same principles are now up for question, as we watch the appointment process of someone who is, in many ways, opposed to these principles. I am speaking of Brett Kavanaugh, President Trump’s second Supreme Court nominee, and a man who I believe is unfit to be anywhere near the highest court in the land.

There has already been quite a bit of buzz surrounding his nomination, especially about his Senate hearings, and now we are seeing defensive statements from the Trump administration and high-ranking Senators, all of whom are trying to dismiss the highly-credible sexual assault allegations against him. I will not only be looking at his Senate testimonies, but I will also examine significant elements of his past work that I believe do not bode well for his capabilities as a judge, including previous decisions and legal opinions.

First, looking through a policy-based lens, I find several troubling decisions and sentiments. One such issue is that of net neutrality, the now-defunct policy that ensured equal access to information and prevented internet service providers like Comcast from discriminating against web content. Essentially, it kept the internet from becoming cable television, with websites and internet services divided up into separate “packages.” Kavanaugh has shown, in a legal context, that he does not believe that net neutrality should exist in the United States. From this belief, it can be inferred that Kavanaugh does not believe equal access to information is a necessary right in the United States, as his position supports discrimination between information sources. In the 2016 case United States Telecom Association vs. FCC, the D.C. Circuit Court of Appeals upheld the constitutionality of the FCC’s Open Internet Order, which contained net neutrality as a provision. In this case, Kavanaugh offered a dissenting opinion. He argued that ISPs had a right to discriminate under the First Amendment and that it was part of their right to freedom of speech. This is deeply troubling as it proves his intention to place the rights of corporations above the rights of people.

On the issue of reproductive rights, Kavanaugh tries to make himself appear neutral. This is, however, merely a mask. His remarks and written opinions show otherwise. He has repeatedly expressed admiration for former Supreme Court Justice William Rehnquist. During law school, and again during a speech last year for the American Enterprise Institute, a right-wing think tank, Kavanaugh praised Rehnquist, calling him his “first judicial hero.” That’s high praise, so I suppose it makes sense to look at Rehnquist’s record, to see just what makes him so “extraordinary.” For starters, Rehnquist was one of only two justices to dissent in Roe v. Wade, and as Bruce Shapiro of “The Nation” puts it, “he devoted himself to opposing abortion rights in every case from Roe v. Wade on.” It is worth noting that Rehnquist was also a rabid opponent of the civil rights movement, going so far as to pen a memo in 1952, according to The New York Times, that argued for the reaffirming of Plessy v. Ferguson, the infamous case that legalized racial segregation through the ‘separate but equal’ clause. Beyond this continued praise for such a harmful human being, Kavanaugh has been nominated by President Trump, who stated that he would only appoint judges who would overturn Roe v. Wade, The Washington Post notes. These are clearly not the marks of a man who is an any way, shape, or form, “neutral.” When asked about Roe in his Senate hearings, he merely replied “I understand the importance of its precedent.” This says absolutely nothing, and is the equivalent of him saying “I’ll consider it.”

This is not to mention the “originalist” perspective that Kavanaugh is so proud to hold, the idea that the Constitution is not a living document. What judges like Kavanaugh and the late Antonin Scalia seem to have failed to understand is that true justice is not a simple application of words on paper. It is not cut and dry because it was never meant to be. Justice is a combination of legal, moral, and ethical precepts. These precepts do not stop at the decision itself, for these individuals often fail to consider the social impact of their decisions. “Originalist” thought like this has resulted in some of the most inequitable and unjust decisions in history, from Dred Scott v. Sanford, which affirmed second-class status for African-Americans under slavery, to Citizens United v. Federal Election Commission, which opened the floodgates for near limitless amounts of corporate spending in politics.

Proponents of Kavanaugh’s nomination have argued that he is an excellent choice for the Supreme Court because of his record of adherence to the Constitution. Yet, this is hardly descriptive of Kavanaugh, as his record demonstrates far more religious and personal bias than any ties to the Constitution. For example, it strikes me as odd that a common defense for his anti-choice position is that being against the right to abortion is his religious belief, and that those same defenders say that he will uphold the Constitution. During the hearings, Kavanaugh expressed agreement with the idea that the government is in some way hostile to religion and religious individuals. This argument has been employed by Sen. Ted Cruz recently, who stated that “Democrats want justices who will further that assault on religious liberty.” His career history has also shown religious influence, including an amicus brief he wrote for the Santa Fe Independent School District v. Doe, in which, The Washington Post explains, he argued that prayers at a public high school football game did not violate the ‘Establishment clause.’ This argument was struck down by the court. In an email, released by Sen. Cory Booker, Kavanaugh stated that he was unhappy with a clause in a new piece of legislation that would prevent direct government funding of religious practices by religious groups. One either supports separation of church and state or they support direct influence of religious beliefs in the judicial system. It does not take a law degree to see that difference.

Another common argument in favor of Kavanaugh is that he will ensure a moderate and balanced court. The problem with this is that Kavanaugh is neither moderate nor balanced. On nearly every major issue, from gun reform to money in politics to climate change to reproductive rights, he is clearly on the right side of the field. An already right-leaning court will be sent into overwhelming conservative control with him on the bench, and this will only cement an already oligarchical, Republican-centered system of government.

All of this is extremely important, but it leaves out one major detail: the fact that, as Politico notes, specific details of a sexual assault by Kavanaugh have emerged. Dr. Christine Blasey Ford has brought forth credible allegations that, in my view, should immediately render Kavanaugh’s nomination moot. This revelation is made all the more troubling by the fact that Sen. Mitch McConnell stated that Kavanaugh had “too much of a paper trail,” and that Sen. Chuck Grassley immediately released a letter signed by 65 women who went to school with Kavanaugh, defending his “character.” The fact that this was seemingly prepared in advance, as if it was anticipated to come to light, is all the more alarming

In short, his failure to understand the importance of upholding people over corporations, his worship of Rehnquist, a discriminatory and prejudiced individual, the sexual assault allegations against him, and his complete and utter disregard for reproductive rights make for only one morally acceptable outcome: Kavanaugh should not only be immediately rejected from consideration for the Supreme Court, but his current position should also be heavily evaluated. In my view, he is not fit to serve in any position that would give him power to decide right from wrong or just from unjust. Unlike the justice that he claims to uphold, this case is, in fact, cut-and-dry. To put a stop to his nomination process, and to send a signal that individuals, such as Kavanaugh, are not acceptable in our justice system, call your senators at (202) 224-3121.

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