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Kava-NAH or Kava-YAH: What You Should Know about Brett Kavanaugh

Betty Kubovy-Weiss

September 3rd, 2018


Judge Brett Kavanaugh is President Trump’s nominee for Supreme Court Justice. His Senate confirmation hearings begin tomorrow, Tuesday, September 4th. The Senate Judiciary Committee will hear Kavanaugh's and other witnesses’ statements and will decide whether to take the vote to the Senate floor. The Senate must then vote, and only need to vote 51-49 for Kavanaugh to be approved.


In his nomination, President Trump decreed, “there is no one in America more qualified for this position, and no one more deserving." Oftentimes, Supreme Court nominations are not as controversial as Kavanaugh’s has been. The general public is just not as invested in the changeover. As Adam Liptak from the New York Times puts it, “most Supreme Court appointments are in a way inconsequential. A conservative replaces a conservative, a liberal replaces a liberal, and the court’s basic direction is unchanged. That is not the case with the nomination of Judge Brett M. Kavanaugh… [who] is considerably more conservative than the justice he would replace, Anthony M. Kennedy.” But who is Brett Kavanaugh, and why is he so controversial? Here is the basic rundown of what you need to know about him, from his past, to where we are in the process now, to what exactly you need to worry about and why (the landmark, life changing Supreme Court case Roe v.Wade, for starters?).


Kavanaugh’s Background

Kavanaugh graduated from Yale Law School, and worked under former Independent Counsel Kenneth Starr. Bill Clinton’s impeachment was decided by Starr, and Kavanaugh was a lead writer of the Starr Report (essentially the documentation of said Clinton investigation). J.D. Vance, Republican author and venture capitalist, wrote in the Wall Street Journal, “[Kavanaugh] is a committed textualist and originalist*, one whose time on the bench has revealed a unique ability to apply these principles to legal facts.”


Elliot Ash and Daniel L. Chen from The Washington Post argue that Kavanaugh is “radically conservative” and that Vance’s report on his fairness and potential competence is grossly misleading. Kavanaugh has been a judge on the D.C. Circuit Court since 2006, and he currently serves on the U.S. Court of Appeals. Ash and Chen state, “Kavanaugh has tended to dissent more often along partisan lines than his peers… He has justified his decisions with conservative doctrines far more frequently than his colleagues.” Basically, even as Republicans go, Kavanaugh is extreme. Notably, Ash and Chen also observe, “Kavanaugh’s divisiveness has ramped up during campaign season: He has disagreed with his colleagues more often before elections, suggesting that he feels personally invested in national politics.”


Kavanaugh was a member of the George W. Bush administration, which has recently become very controversial in the issue of his nomination.


What Is Happening Now

The New York Times reports that 100,000 pages of records from Kavanaugh’s time as a lawyer in the second Bush administration are being withheld by the Trump administration under “executive privilege.” This was revealed in a letter from a Bush lawyer to Iowa Senator Charles E. Grassley, the chairman of the Senate Judiciary Committee. New York Senator Chuck Schumer turned to Twitter on September 1st to denounce the suspicious situation:


“We’re witnessing a Friday night document massacre,” Schumer wrote. “President Trump’s decision to step in at the last moment and hide 100k pages of Judge Kavanaugh’s records from the American public is not only unprecedented in the history of SCOTUS noms, it has all the makings of a cover up.”


Roe V. Wade

There has also been lots of concern about Kavanaugh’s vote being able to swing the Supreme Court to overrule Roe v. Wade (1973), the Court ruling protecting a woman’s right to abortion. According to Nussbaum from Politco, Kavanaugh was in the public eye surrounding his dissent of a U.S. Court of Appeals ruling. The court rules in favor of an undocumented teenager, under the pseudonym Jane Doe, being allowed to have an abortion. In the official United States Court of Appeals document, Kavanaugh’s dissent is attached at the end, where he states, “today’s majority decision... is ultimately based on a constitutional principle as novel as it is wrong: a new right for unlawful immigrant minors in U.S. Government detention to obtain immediate abortion on demand, thereby barring any Government efforts to expeditiously transfer the minors to their immigration sponsors before they make that momentous life decision.” Nussbaum continues, “some conservatives have privately argued that his dissent did not go far enough and have expressed skepticism he may not be a reliable vote in potentially overturning Roe v. Wade.”


It does seem that Kavanaugh’s main issue with the case is that the minor seeking an abortion is not under the custody of her sponsor before having the procedure. “Under Supreme Court precedent in analogous contexts, it is not an undue burden** for the U.S. Government to transfer an unlawful immigrant minor to an immigration sponsor before she has an abortion, so long as the transfer is expeditious.” Kavanaugh argues throughout his dissent that the issue at hand is not innately whether or not she should have an abortion, but whether she should be allowed to do so before or after she is with her US sponsor. His opinion? No. She should not be allowed to make this decision without having an adult to help her make the choice.


The fact does remain, however — sponsor or not — that Judge Brett Kavanaugh is not pro-choice. Garrett Epps for The Atlantic reports that Kavanaugh assured Maine Senator Susan Collins that she should endorse him without concern for Roe v. Wade. His reasoning? Roe v. Wade is “settled law.” Epps investigated just what this meant: “I haven’t been able to find a clear definition of the term, but in 1976, Justice John Paul Stevens wrote, ‘the Court seldom takes a case merely to reaffirm settled law.’ So maybe there’s a functional definition. ‘Settled law’ means law the Court hasn’t decided to overturn just yet.”


He continues to analyze whether Roe v. Wade could be considered settled law under this definition. Epps analyzes the court decision from above, and describes Kavanaugh’s dissent: “Kavanaugh’s tone is not anti-abortion; instead, he talks about the issue as if it were some incomprehensible and extraneous bit of nonsense being imposed on the court and the government by something called ‘Supreme Court precedent.’ Readers can easily infer what Kavanaugh believes about abortion and the cases that protect the right to choos [sic], but Kavanaugh won’t tell.”


In short, Epps comes to the conclusion that due to the seemingly endless debate about abortion rights, Roe v. Wade is not settled law. He does not believe Kavanaugh can be trusted to protect Roe v. Wade despite what he told Senator Collins.


What To Do Now

Judge Brett Kavanaugh is experienced and qualified to sit on the Supreme Court, almost indisputably. He is, however, another Trump-era politician whose conservatism and right-wing views are extremist even within the Republican party. Richard Wolf for USA Today reminds his readers that Trump is currently under Federal investigation, meaning on the Democrats’ side, Kavanaugh is subject to higher scrutiny than Justice Gorsuch (Trump’s last Justice nominee) was. He continues that Justice Anthony Kennedy was a swing vote, a role Kavanaugh will almost definitely not be filling.


If you support Kavanaugh or not, reach out to your Senators, for they have the last say. The President nominates a Justice, but the nominee must earn a majority vote in the Senate to be confirmed.


And remember, if nothing else, Ruth Bader Ginsburg does not seem to be going anywhere.


*Originalists and Textualists believe the meaning of the Constitution does not change as the world does, but rather that the amendments and bills carry the same meaning today as they did at the time of their writing.


**Undue burdens are, essentially, unnecessary inconveniences.

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