Brett Kavanaugh: For Better or For Worse?

July 9, 2018: In the moments after President Trump announced Brett Kavanaugh as his nominee to the Supreme Court of the United States — a U.S. Court of Appeals judge for the D.C. area and one who could replace the soon-to-retire Justice Anthony Kennedy, 81 — a predictable information firestorm tore through the blogosphere. From far-right outlets to far-left talking heads, this was either the beginning of all the winning  or the end of the world. So let’s take a moment to approach Kavanaugh from a more objective viewpoint — by observing some of his stances in past judgments.

He takes a strong stance against warrantless wiretapping, stating that it infringes on the Fourth Amendment — the one involving unreasonable search and seizure — that’s granted to American citizens. The wiretapping, taking place without going through legal steps to prove the process is warranted, is an action exposed by former NSA contractor and current legal refugee Edward Snowden.

In another case, involving whether authorities could put a GPS tracker on criminal suspects’ vehicles, Kavanaugh did admit that (much like taking pictures of people on the street), the suspect had no expectation of privacy in public areas. However, he ultimately concluded that tampering with vehicles violates property rights — criminal suspects or not.

In his congressional interview after his nomination to the High Court of Appeals, Kavanaugh was questioned by Sen. Chuck Schumer (D-NY) on whether he considered Roe v. Wade to be (per the senator’s words) “an abomination.” Kavanaugh’s response: “If confirmed to the D.C. Circuit, I would follow Roe v. Wade faithfully and fully. That would be binding precedent of the Court. It’s been decided by the Supreme Court.”

Kavanaugh has a blank slate when it comes to gay rights. There’s no record of him having said anything for or against. However, in a quote in a segment to follow, he does talk about making an amendment for equal rights. Still ambiguous, but not the language of someone who doesn’t like the idea of equality.

In 2015, Kavanaugh argued that the Affordable Care Act’s mandate for contraception coverage infringed on the rights of religious organizations.

Proponents of strict immigration laws dig Kavanaugh for at least two high-court opinions. In one case, he contended that a union election was void because undocumented immigrants “tainted” the results by illegally voting in it. In another, he smacked down special visas for Brazilian workers, citing that Americans could do the job just as well.

In 1999, Kavanaugh wrote on behalf of the Center for Equal Opportunity — a group against race-based affirmative action in college admissions — and argued that a Hawaiian law that only allowed native Hawaiians to vote in elections for the Office of Hawaiian Affairs was unconstitutional. Kavanaugh believed the law prohibited people from voting because of their race. (The Supreme Court would later agree with that argument in a 7-2 decision.)

In 2014, Kavanaugh wrote, “The IRS doesn’t have the power to regulate paid tax preparers.” This was his opinion in Sabina Loving v. IRS. He said that such oversight could make sense, but it was ultimately “a decision for Congress and the President to make if they wish by enacting new legislation.”

Kavanaugh also dissented from a decision last fall that permitted a detained, undocumented teenager, 17, to have an immediate abortion. Citing in both Roe v. Wade and Planned Parenthood v. Casey as Supreme Court “precedents we must follow,” Kavanaugh also saw the grey area: That the abortion would infringe on the detainee’s right to be quickly transferred to her immigration sponsors, hindering her expedited release in the process. That would be a constitutional infringement. Additionally, abortions of undocumented detainees are not to be funded by the U.S. government, but rather by sponsors of released detainees. Therefore, a swift transition to her U.S. sponsor (usually a relative, friend, or acquaintance) would be necessary in order to find an appropriate program for the abortion which, in this case, is illegal in her home country of Mexico. Ultimately, the high court decided that it could take too long for pregnant detainee to find a sponsor, so allowing her the abortion while in custody went forth.

Kavanaugh sided against the U.S. meatpacking industry when they collectively argued that the Department of Agriculture was violating their First Amendment rights by requiring labels that disclosed where their meat-production processes took place. Kavanaugh stated that historically, our government has kept an interest in supporting American manufacturers, farmers, and ranchers against foreign competition.

 

In an introduction to a speech after the death of Justice William Rehnquist, he wrote: “We revere the Constitution in this country, and we should. We also, however, must remember its flaws. And its greatest flaw was the tolerance of slavery. That flaw cannot be airbrushed out of the picture when we celebrate the Constitution. It was not until the 1860s, after the Civil War, that this original sin was corrected in part, at least on paper, by ratification of the 13th, 14th, and 15th Amendments to the Constitution. Many think we could use a few more constitutional amendments: term limits for Supreme Court justices, term limits for members of Congress, an equal rights amendment, a balanced budget amendment, abolition of the death penalty.”

In a case involving the the FCC’s 2015 Open Internet Order (known as net neutrality), Kavanaugh was no friend of those who feel the internet service providers should be required to treat all data on their networks equally. The grey area lies in that the FCC — of course a governmental agency — considers internet service providers “common carriers.” Others, like Kavanaugh, see the service as a means of providing editorial content, much like newspapers. In other words, he sees companies like AT&T, Verizon, and Comcast as private companies that shouldn’t have special rules placed on them by the government. To Kavanaugh, imposing regulations that crack down on such practices as “throttling” data usage (which slows down service), or charging more for visits to certain websites is simply part of what happens in private free-market practice. In a 2017 dissent, he wrote that the “Supreme Court precedent establishes that Internet service providers have a First Amendment right to exercise editorial discretion over whether and how to carry Internet content.”

In summation, this is just a preliminary look at Mr. Kavanaugh. There are lots of cases in which he presided that you can access with a quick Google search. Looking directly into court documents is a much more accurate way of learning the truth behind some of the candidates who are up for such influential positions in our high courts or, in this case, our highest.