The most precious of our constitutional rights—and the most vulnerable—are those protecting uniquely human, personal rights of individual privacy, autonomy and dignity. These rights are protected in well-settled federal jurisprudence and, textually, in the constitutions and in the case law of many States—mine, Montana, included.
However, when fascist regimes are birthed, these rights (along with freedom of the press) are the first to be attacked. And, not surprisingly so. Fascists need scapegoats and false causes to inflame the basest instincts of the populace which they seek to control. To that end, tyrants have, time after time, attacked, demonized and scapegoated marginalized populations (women, LGBTQ people, the disabled, the mentally ill, racial and religious minorities, and immigrants). Fascists stir up rancor, bigotry, and hatred against these populations in order to give their followers a common enemy to blame for typically manufactured, societal economic, social and moral ills.
Sadly, this, too, is the play-book of the Trump administration. President Donald Trump has targeted each of these populations—belittling, mocking, and, in some cases, labeling them as criminals (or worse).
Trump controls the majority party in the second branch, a party which slavishly supports his every whim. Indeed, the ovine, lickspittle Congress has utterly failed in its duty to check and balance the Executive.
Unfortunately, Trump is now poised to solidify his control over the third branch of government, the judiciary. To lose this check and balance, however, is nothing short of disastrous. The courts have historically protected and enforced the vulnerable constitutional rights mentioned above. And, to the extent Trump controls the courts with his appointments, in general, and the Supreme Court, in particular, his control will effectively last for generations—meaning that Americans will continue to suffer under Trump’s inimical policies and philosophy for decades after he leaves office.
Trump already has four Justices firmly in his corner—Chief Justice John Roberts, and Justices Samuel Alito, Clarence Thomas, and Neil Gorsuch. With Justice Anthony Kennedy’s resignation, Trump aims to cement his control over the Supreme Court with the appointment of Judge Brett Kavanaugh.
Kavanaugh must not be confirmed. His track record on civil rights and on cases which are likely to adversely impact the aforementioned vulnerable and uniquely personal, human rights is atrocious. For example:
• He is firmly against women’s right of choice. Last year, for example he attempted to ban a pregnant immigrant teen in federal custody from getting an abortion. In a 2015 dissent, he argued that mandated contraception coverage infringed on the rights of religious organizations. Indeed, one of Trump’s stated rationales for nominating Judge Kavanaugh is to secure a decision overruling Roe v. Wade.
• He is likely no friend of LGBTQ rights. Indeed, his nomination is supported by the Family Research Council (designated as a hate group by the Southern Poverty Law Center), an organization which is vocally opposed to gay rights, homosexuality, and gay marriage.
• He will likely agree with Trump’s attacks on the Affordable Care Act. Judge Kavanaugh holds to an expansive view of executive power. He, in fact, argued that a president could decline to enforce a law, like the ACA, notwithstanding that the constitutionality of the law had been upheld in court. Similarly, Kavanaugh’s views could adversely impact other healthcare cases, including those dealing with Planned Parenthood.
• He is against workers’ rights. In a 2016 opinion, Kavanaugh held that employers can prohibit employees from displaying union signs in their cars as part of a requirement to also waive their right to picket in arbitration agreements. Moreover, he has time and time again taken positions favoring the interests of big business vis-à-vis the rights and interests of workers and unions.;:
• He, likewise, favors big business over the American consumer. He sided with U.S. meatpackers who argued that the Agriculture Department violated the First Amendment by requiring labels which disclosed where each step of the meat production process took place. And, he has taken a similar approach against regulators attempting to lower greenhouse gas emissions.
• He is against the historical separation of church and state. He has supported the public funding of sectarian schools and student-led prayer at school events.
• He will likely hold unconstitutional reasonable gun control regulations. In a 2011 case he dissented from a decision upholding the constitutionality of a D.C. law that required gun owners to register and banned the possession of semiautomatic rifles.
• He is unlikely to support a person’s right to vote over state regulations which make the exercise of that right more difficult. In a 2012 case he voted to uphold a state law which required voters to present a government-issued photo ID before being allowed to vote.
• He is against internet neutrality, and if the FCC’s latest rules involving that issue are challenged, Kavanaugh will likely take the position that corporate internet service providers have a First Amendment right to block content as part of their “editorial discretion.”
In short, Kavanaugh has demonstrated a philosophical commitment to Trump’s anti-civil rights, pro-big business, racist, xenophobic, homophobic and misogynistic views and policies. If confirmed, Kavanaugh, joined by his four conservative colleagues, will insure that the worst of Trump will become the law of the land and live on for generations to come.
If there is any hope of keeping the judiciary, as a constitutional check and balance on the executive, the Senate must rise above partisanship and decline to confirm Kavanaugh’s nomination.