Trump’s “happy warrior” for injustice
documents the reactionary record of Trump’s Supreme Court nominee.
DURING HIS 2006 confirmation hearings to become a justice on the D.C. Circuit Court of Appeals, Sen. Chuck Schumer said of Brett Kavanaugh: “If there has been a partisan political fight that needed a good lawyer in the last decade, [he] was probably there. And if he was there, there is no question what side he was on.”
Now, Kavanaugh has been nominated for a promotion — and Donald Trump doesn’t need to worry about what side he’ll be on if Kavanaugh becomes a U.S. Supreme Court justice.
Kavanaugh has been so much a part of the right-wing legal establishment that Illinois Democratic Sen. Dick Durbin once called him the “Forrest Gump of Republican politics.” He definitely has had a knack for being at the center of many legal and political conflicts, battling in the interests of the right wing.
His nomination comes after a long climb up the ladder of the Republican and conservative legal establishment, including as a supporter of George W. Bush and then a member of his administration.
After clerking for Justice Anthony Kennedy, who he has been nominated to replace, Kavanaugh worked for Kenneth Starr, the independent counsel, or special prosecutor, installed by a Republican-led Congress to investigate then-President Bill Clinton.
Starr’s investigation was marred by questionable legal ethics and extreme partisanship, and Kavanaugh was up to his eyeballs in it — he was the lead author of the infamous concluding Starr Report.
In 2000, Kavanaugh, with the financial and political backing of the most reactionary sectors of Miami’s Cuban exile community, represented the U.S.-based family of Elian Gonzalez, which unsuccessfully sought to keep the 6-year-old child from being returned to his father in Cuba, after his mother’s death while crossing from Cuba to Florida.
A few months before that, Kavanaugh represented former Florida Gov. Jeb Bush in his attacks on public education via a school voucher program that would direct public money to private religious schools. The program was struck down by the courts in 2006.
Kavanaugh’s next prominent legal venture proved more successful. He served on the legal team of the George W. Bush campaign, where the Republican Party stopped a recount of ballots in Florida, ensuring the theft of the 2000 presidential election. For his service, Kavanaugh went on to become a key legal counselor in the Bush White House.
At the 2018 law school commencement for Catholic University, Kavanaugh shared his reminiscences about Bush, including how much he “love[s] the guy.” The former president and war criminal “lives on the sunrise side of the mountain,” Kavanaugh said. “Be the optimist, the happy warrior. Do not get beaten down, as Jesus said and Pope John Paul taught us.”
While working for Bush, Kavanaugh served as associate counsel, senior associate counsel and staff secretary, where he was responsible for protecting presidential documents and defending claims of executive privilege.
In the period after the September 11, 2001, attacks — which witnessed the greatest assaults on civil liberties in generations, along with the immoral and illegal invasion of Iraq that claimed the lives of over half a million people — Kavanaugh was indeed a “happy warrior.”
Despite his role in the Starr investigation, which led to the U.S. House of Representatives voting to impeach Clinton (he was acquitted by the Senate), Kavanaugh seems, after his service in a Republican administration, to have lost his taste for booting a president out of office.
MANY PEOPLE have understandably focused on the legality of abortion as a decisive question in this nomination.
It may be that Kavanaugh, as a justice, would seek to continue the insidious process of greater and greater limitations on women’s reproductive rights, rather than support overturning the Roe v. Wade Supreme Court decision that guarantees women’s right to abortion.
But there’s no guarantee. Georgetown Law School Professor David Super pointed out in the Los Angeles Times that Kavanaugh was promoted by conservative organizations that must have had some confidence he would vote to overturn Roe. “Nobody should let the theater of confirmation hearings, or vague promises to respect precedent, obscure that fact,” Super said.
What isn’t in doubt is that Kavanaugh has ruled in a variety of cases to expand the power of the executive branch since joining the federal judiciary in 2006.
He ruled in favor of the National Security Agency call records surveillance operation, and he argued that the president could opt not to enforce the Affordable Care Act, even if it was ruled constitutional by the courts.
As a youth, Kavanaugh attended the conservative Jesuit Georgetown Prep School, where he was a classmate of Trump’s first Supreme Court nominee, Justice Neil Gorsuch.
Like Gorsuch, Kavanaugh is an great admirer of the still-dead former Justice Antonin Scalia. In addition to their ultra-conservative Catholic faith, they share a commitment to the legal principles of “originalism” and “textualism,” which generally relies on and seeks to enforce the worst anti-democratic and conservative traditions of the U.S. republic.
Also like Gorsuch, Kavanaugh comes out of the D.C. Circuit Court of Appeals. As a justice there, he aggressively sought to push back against the expansion of the so-called administrative state.
Kavanaugh ruled against the powers and structure of the Consumer Financial Protection Bureau, set up under tame legislation following the 2008-09 Wall Street crisis to rein in the worst excesses and practices of the big banks. The whittling away of the meager reforms has intensified under Trump.
Kavanaugh also sought to radically curtail the power of administrative agencies such as the Environmental Protection Agency and Federal Communications Commission. His justification has been that rules which facilitate their work are outside the explicit, narrow language under which Congress authorized action by the agencies.
In other words, where Congress hasn’t spoken “on matters of deep economic and political significance,” Kavanaugh presumes the challenged regulations to be invalid.
The legal attacks threaten independent and administrative agencies that historically have been empowered to protect against the worst excesses of the capitalist free market. Kavanaugh, like Gorsuch and Scalia, appears to want to return this country to a regulatory environment like what existed before the early 20th century — one barren of regulation, in which the market reigns supreme.
ACCORDING TO right-wing factotum and New York Times columnist David Brooks, while “Trump bucked the conservative foreign policy establishment and the conservative economic establishment... he’s given the conservative legal establishment more power than ever before.”
Kavanaugh is the latest Trump judicial nominee who has won the approval of more traditional wings of the Republican Party and conservative establishment. As a result, his nomination has met with less strident support from the far reaches of the religious and libertarian right.
There is no reason at all to believe that Kavanaugh won’t be a hardened right-wing ideologue like Scalia, but the lack of Religious Right enthusiasm for his nomination could lead some liberals to conclude that he is more acceptable.
Sections of the Democratic Party seem to understand that a failure to fight this nomination will have repercussions given the growing anger and radicalization concentrated in the party’s base.
But the recent example of Neil Gorsuch, where several Senate Democrats joined a united Republican caucus in voting to confirm him, doesn’t offer confidence.
Like all of the struggles that have emerged to challenge Trump’s racism and reaction, and to defend of our basic democratic rights, it will take more organizing and greater mobilization against Trump’s attacks to stop this latest right-wing threat.