By Earl Ofari Hutchinson
Judge Brett Kavanaugh will start the first leg of his journey to a seat on the U.S. Supreme Court with a big headwind from Senate Majority Leader Mitch McConnell starting with Senate Judiciary Committee hearings on Sept. 4.
McConnell is moving heaven and earth to bum rush Kavanaugh to the high court. He blew off Democrats’ loud demand for more documents to review on Kavanaugh. He’s radically moved up the timetable for the hearings. He has played the classic petty autocrat in telling Democrats he will brook no stall tactics when Kavanaugh comes up for a full Senate vote.
Now that Kavanaugh’s nomination is going full bore ahead, just what does he stand for. Or, more accurately, what is the real Kavanaugh peril posed once he is on the Supreme Court.
It’s just that: a colossal peril. In two dissents in appellate cases in 2015 and 2017, he shot down abortion rights for an immigrant and upheld the conservative’s claim that contraception infringed on religious rights. The dissents are repeatedly pointed to as hard proof that he’ll be the judge who fulfills the longstanding dream of ultra-conservatives to dump Roe vs. Wade.
However, the abortion peril is hardly the only cause for worry in Kavanaugh’s strict constructionist court record.
Here’s a checklist of some of those rulings and opinions:
There are three cases in which Kavanaugh’s dissents tagged him as no friend of unions. The cases were in 2008, 2014 and 2018. They involved corporations trying to skirt bargaining with unions over wages and working conditions and avoid paying fines for nefarious labor practices and violations. In all three cases, Kavanaugh took the side of the companies.
On Oct. 21, 2014, the U.S. Court of Appeals for the District of Columbia Circuit held that it was reversible error for the U.S. Citizenship and Immigration Service, an agency of the Department of Homeland Security, to categorically discount culturally acquired knowledge when determining whether an alien applying for a nonimmigrant visa has “specialized knowledge.”
The case was brought by Homeland Security ostensibly to prevent a restaurant from hiring foreign workers presumably because of the potential security threat. The appeals court rejected the argument. But not Kavanaugh. He agreed with Homeland Security that foreign workers at the restaurant in question had no business being employed there.
This is the one area of law where Kavanaugh has compiled a horrific paper trail of rulings and dissents. In nearly all the cases, he figured out a way to legally uphold the rights of corporations to battle back against the various Environmental Protection Agency restrictions and authority to regulate the big polluting companies.
Kavanaugh’s paper trail is thin on issues directly involving race. However, there is one case that does give a hint as to where he’d take the court when the inevitable next case hits the high court challenging affirmative action, and beyond that other racial matters.
The case was an action brought by the ultra-conservative Center for Equal Opportunity, whose virtual sole mission is to wage legal war on anything that even faintly smacks of alleged “racial preferences.”
Kavanaugh wrote the brief for the center in its challenge to a Hawaiian law allowing only native Hawaiians to vote in elections for the Office of Hawaiian Affairs. On the surface, it seemed like a fair challenge, and a clear case of so-called “reverse discrimination.”
Kavanaugh was direct: “Even assuming such past discrimination, a racial qualification to vote has ever been held necessary and narrowly tailored to remedy past discrimination. … It is a strict racial qualification that categorically excludes members of certain racial groups (all but Hawaiians).” But there was a larger implication in the case. That is that eliminating this law provides a legal launch pad for a broader assault on affirmative action programs that are not “narrowly tailored,” as Kavanaugh contended.
Kavanaugh left little doubt how he would rule on any issue that involves religion and the separation of church and state wall in the Constitution. He’s against the separation wall. He gushed in a major article for the American Enterprise Institute in 2017 on his judicial hero, former Chief Justice William Rehnquist, that Rehnquist got it right when he hammered the “religious wall” constitutional proscript. He persuasively criticized the wall metaphor as “based on bad history” and “useless as a guide to judging.”
Kavanaugh could not have been plainer when he wrote this majority appellate court ruling in 2016. It whittled even more power away from the Consumer Financial Protection Bureau’s ability to put minimal checks on the unabashed power of corporations, banks and other financial institutions to shamelessly profiteer off consumers.
The judge has tipped his rigid hand in many other rulings and opinions. They include: net neutrality (against), school vouchers (for), unlimited government surveillance including dubious wiretaps (for), and tight federal regulations of corporations (against).
If confirmed, Kavanaugh will be the conservatives long dreamed of fifth vote on every issue from civil rights to corporate power that will reshape the nation into an ultra-conservative mold for years to come. This is the colossal Kavanaugh peril.
Earl Ofari Hutchinson is an author and political analyst. He is the author of the forthcoming “Why Black Lives Do Matter” (Middle Passage Press). He also is a weekly co-host of the Al Sharpton Show on Radio One and host of the weekly Hutchinson Report on KPFK 90.7 FM Los Angeles and the Pacifica Network.