Kavanaugh’s Confirmation in Context

Photo: Sept. 29 March to End Rape in Philadelphia. ~Michael Canelori / NurPhoto

By Ann Montague,  Published on Socialist Action, October 7, 2018

Outrage continues to spread throughout the United States over President Trump’s nomination of Brett Kavanaugh to the Supreme Court. Kavanaugh, currently on the Court of Appeals for the District of Columbia Circuit, has been roundly criticized for his reactionary rulings against labor and protections for the environment, and scorned for his opinions and actions that denigrate women. Adding Kavanaugh to the Supreme Court, replacing Justice Anthony Kennedy, would move the Court further to the right and drive its rulings to greater extremes.

Women and men began protesting the Kavanaugh nomination right after it was announced on July 9. The looming anger that Roe v. Wade could be overturned has energized women across the country to oppose his confirmation. Polls showed that Kavanaugh was the most unpopular Supreme Court nominee in history.

And then on Sept. 16, a bombshell fell when Christine Blasey Ford said that Brett Kavanaugh had sexually assaulted her when she was 15 and he was 17. Protest rallies took place in all 50 states as well as civil disobedience in the halls of the Senate office building. This created pressure on the Senate Judiciary Committee to allow Dr. Ford to be able to testify. Immediately, recollections came to the fore of Anita Hill testifying against Clarence Thomas in 1991.

But times have changed, and while women who were watching Hill’s testimony still had a feeling of isolation, women this time experienced the collective support of millions.

As a result of the #MeToo movement, women have become empowered to tell their story, and also to listen to others. One woman told CNN, “I knew that if I watched Christine Ford testify it would trigger my own trauma, but I was determined to watch.”

Photo: Opposing Rape Culture, October 2018, ~John Leslie

The nation was riveted to her testimony. Wherever you went, her wrenching and authentic testimony was being heard on the radio, television, or phone. The Capitol Police reported arresting 200 women protesting the Kavanaugh hearings. At the same time women across the country rallied and protested. Most of the signs said simply, “I believe her.” One woman told a reporter, “This wasn’t really organized, I have never done this before, but people need to see our faces.”

As the full Senate vote on Kavanaugh’s nomination neared, protest demonstrations grew in size. On Oct. 4, thousands of protesters massed in Washington, D.C., as the FBI presented to the Senate the report of its investigations related to Ford’s charge that Kavanaugh had sexually assaulted her. The protesters stopped traffic as they marched toward the Supreme Court building and later to the Senate office building, where some entered the doors. Signs and chanted slogans included, “Sham process, sham court;” “Make integrity great again;” and “Women won’t be quiet anymore.” At least 100 were arrested.

Kavanaugh on women’s rights

As the confirmation process played out, there were real concerns that the preponderance of right wingers on the Supreme Court will lead to the demise of Roe v. Wade and that ever tighter restrictions on the right of women to control their own bodies will be enacted. Many fear a resurrection of the era in which women were forced to go to illegal back-alley parlors to obtain abortions. But a renewed mass movement for women’s rights and reproductive justice can make sure that never happens.

One of Kavanaugh’s reactionary rulings on the issue occurred last year, when a 17-year-old undocumented immigrant was arrested crossing the U.S.-Mexico border and confined to a private detention center in Texas that has a contract with the Office of Refugee Resettlement (ORR). She was eight weeks pregnant and wanted to terminate the pregnancy. She had the money to pay for the procedure, transportation, and the approval of a Texas judge who stated that she was “mature and sufficiently well informed to make the decision to have an abortion.” In Texas minors are required to receive the approval of a judge if they are seeking an abortion without parental consent.

Her only barrier was that the Trump administration would not allow her to leave the detention camp for her appointment. Government lawyers claimed that allowing her to attend her appointment would violate a decree issued a few months earlier that said detention centers could not take “any action to facilitate” an abortion without the specific permission of the Office of Refugee Resettlement (ORR) Director, E. Scott Lloyd who is a Trump appointee and a militant anti-abortion activist. Many argue that he is not qualified or prepared for his current position as director of ORR. He claims there is “no constitutional right” for an immigrant minor to have an elective abortion while in federal custody.

ACLU lawyers sued the government on the girl’s behalf and the case, Garza v. Hargan, ended up with a three-judge panel in the DC circuit court. One judge did not believe the girl had any constitutional rights because she was undocumented. The second judge said that she has constitutional rights that were being blocked by the government.

The third judge was Brett Kavanaugh, who presented a solution that trapped her in legal limbo for weeks as her pregnancy advanced towards the Texas 20-week cut-off for all legal abortions. The full circuit court eventually ruled with the ACLU, and the teenager was able to obtain her abortion when she was more than 15 weeks pregnant.

Kavanaugh on the unions

Approving Kavanaugh as a justice will augment the anti-labor majority on the Supreme Court. This year, in Janus v. AFSCME, the Court blocked all public employee unions from collecting fair-share payments from non-union workers. A similar ruling was made in the 2014 Harris v. Quinn decision, which eliminated “fair-share” payments for Illinois home-care workers—an attack on the rights of a workforce that is predominantly female. Union workers in the private sector have been watching the attacks on their sisters and brothers and wondering who will be next.

Documents that have been released to the public show that Kavanaugh’s decisions from his time as a Bush-appointed judge on the U.S. Court of Appeals reflect a long history of anti-working-class decisions. This court regularly reviews suits challenging the decisions of Washington-based agencies, in which he regularly wrote opinions attacking the National Labor Relations Board.

In 2008, in Agri Processor Co., Inc. v. NLRB, the majority of the appellate court ruled that undocumented workers have the same bargaining rights as their co-workers. But Kavanaugh dissented, stating that undocumented workers don’t count as employees under the National Labor Relations Act. Undoubtedly, this issue will come up again.

He is a consistent opponent of collective bargaining rights and was involved in reversing a lower court decision and affirming the decision of the Department Of Defense to negate the collective bargaining rights of workers.

One of Kavanaugh’s court rulings served to help Donald Trump directly in smashing a unionization drive at one of his hotels. In 2012, Kavanaugh was one of three judges who voted unanimously to set aside a National Labor Relations Board order that would have allowed the United Auto Workers union to represent workers bargaining with the Trump Plaza Hotel and Casino in Atlantic City, N.J. The hotel has since closed down.

In his highest profile case, Kavanaugh opposed the Occupational Safety and Health Administration (OSHA). In 2014, a case was brought against the SeaWorld theme park in Florida when a killer-whale trainer died during a live show in 2010. This was the second death at that location.

OSHA investigated and found that SeaWorld had willfully endangered its workers, though it imposed only a $7000 fine. Kavanaugh disagreed, saying that the workers had agreed to put themselves in danger, and comparing their work to tiger taming or football.

He stated:

“When should we as a society paternalistically decide that the participants in these sports and entertainment activities must be protected from themselves—that the risk of significant physical injury is simply too great even for eager and willing participants?”

Kavanaugh on environmental regulations

Kavanaugh has changed his position on the Environmental Protection Agency. In 2008, he wrote that the law is clear that it has the supreme authority. But four years later, he changed his mind and joined the majority opinion that struck down an EPA regulation seeking to place limits on sources of downwind pollution. “Congress did not authorize the EPA to simply adopt limits on emissions as EPA deems admissible,” he wrote.

His position generally boiled down to the allegation that the EPA needed specific legislation from Congress to act, and could not rely on earlier regulations that were not specific to the case at hand.

This position can have a bearing on any review of the landmark Massachusetts v. EPA case, in which the Supreme Court affirmed in 2007 that greenhouse gases, the major factor in causing climate change, qualify as air pollutants, and that the EPA therefore has the authority to regulate them under the Clean Air Act.

Kavanaugh has expressed alarm over global warming, and has said that he thinks Congress should do something to mitigate it. But in the meantime, because of the “system of separation of powers,” he does not believe that the EPA has the right on its own to act against it.

In his 12 years as a federal judge, Kavanaugh heard 26 cases involving the EPA. He issued an opinion in 18 of those cases. He sided against industry only twice and has never sided with a public interest group.

In almost every case, Kavanaugh seems to have found a way to side with industry. For instance, he dissented in the case of Mingo Logan Coal Co. v. EPA, which dealt with the EPA denial of a permit to a mountaintop-removal coal-mining company that wanted to dump its waste into West Virginia waterways. The EPA found it would destroy streams and wildlife habitat. Kavanaugh argued that the agency had not focused on the real costs of permit denial—the impact on stock prices that that could result from denying the permit.

Kavanaugh took a similar stance in oral arguments in the Washington, D.C., Circuit Court of Appeals concerning a 2016 Clean Power Plan case. He stated:

“This is huge case … it has huge economic and political significance … it’s fundamentally transforming an industry by telling existing units you in essence have to pay a penalty, a huge financial penalty in order to continue to exist, in order to shift from coal plants to solar and wind plants, at the same time the coal mining industry is in essence greatly harmed, as well.”

Nature and purpose of the Supreme Court

Nothing could illustrate the essence of the Supreme Court more clearly than Brett Kavanaugh’s testimony in regard to Ford’s charges and his demeanor of arrogance and entitlement. In the Senate committee hearings, he lashed out wildly at his perceived accusers:

“This whole two-week effort has been a calculated and orchestrated political hit fueled with apparent pent-up anger about President Trump and the 2016 election, fear that has been unfairly stoked about my judicial record, revenge on behalf of the Clintons, and millions of dollars in money from outside left-wing opposition groups.”

Kavanaugh has an elite educational background that is similar to that of the others who sit on the Supreme Court. He attended Georgetown Preparatory School and then was admitted to Yale University, as had his paternal grandfather. He lied when he said he had no prior connections to Yale, where 25-30 percent of students are “Legacy Admissions.” Kavanaugh now finds himself in excellent company, since every current Supreme Court Justice has attended Harvard or Yale.

The selection of Supreme Court justices is inherently undemocratic. The justices are not elected by voters but are appointed by a narrow body representing the two ruling capitalist parties (nominated by the president and approved by the Senate). In that task, the politicians—Republican or Democratic—generally opt for the appointment of justices who have proven themselves to be “conservative” in their legal careers. They want a Court that will lean on the side of “law and order,” rather than ruling on behalf of radical or “unconventional” thought and action, or the expansion of free speech and workers’ rights.

This is a lifetime appointment, the closest thing we have to a monarchy; the rulings of the Court cannot be appealed. The major function of the Court is to safeguard the legal foundations of capitalist rule. The bedrock of its decisions is supposedly the 18th-century U.S. Constitution, as amended and adjudicated over the last two centuries. But that is all subject to the majority interpretation of the nine sitting justices, who themselves tend to reflect the ideology of the more conservative wing of the U.S. capitalist class.

Street protests against Kavanaugh have involved thousands of women and men who have real fears of his reactionary agenda—and who don’t want a sexual predator on the Supreme Court. But Trump has ignored the grassroots nature of these protests, and instead has regularly denounced the opposition to Kavanaugh’s appointment as originating with the Democratic Party. He told the crowd at a rally in Johnson City, Tenn.,

“The Democrats only know how to obstruct, demolish and destroy, as we’ve seen in recent weeks. Democrats are willing to do anything and hurt anyone to get their way, like they’re doing with Judge Kavanaugh.”

Reports have surfaced of right-wing advocacy groups, like Heritage Action and the Judicial Crisis Network, spending millions to lobby Democratic Party politicians in so-called “red states” to support Kavanaugh’s nomination. Their targets include Senator Joe Manchin of West Virginia, who has appeared to be leaning in favor of Kavanaugh. A group of women, including some who identified themselves as sexual assault victims, occupied Manchin’s campaign office to urge a rejection of Kavanaugh. After about 11 hours, at around 1 a.m. on Oct. 2, the campaign called in the police to remove the protesters, and nine women were arrested.

“Even before the sexual assault allegations came out and his judicial record was released, it was clear that [Kavanaugh] was anti-women and anti-union and anti–working class,” one of the arrested women, Britt Huerta, told the Huffington Post. “If Joe Manchin were to vote ‘yes,’ it would really send a bad message to West Virginia women about their autonomy over their own bodies and their right to make their own decision.”

Editor’s Note: Kavanaugh was confirmed by a margin of a single vote.  

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