The first problem with Brett Kavanaugh’s nomination is the nomination process: If it’s true, as NBC has reported, that retiring Justice Anthony Kennedy negotiated his replacement as a condition of retirement, that’s not just unusual—it’s unethical. Supreme Court seats are not poker chips to be traded. As one former Justice Department official put it: “The judiciary is not supposed to be involved in choosing the judiciary.” If talks began before the court ruled on Trump’s Muslim ban, it’s yet more unethical.
Seating Kavanaugh means allowing the criminalization of abortion. The first clue to Kavanaugh’s stance comes from Trump’s fevered and frequent promises to appoint only “pro-life” justices. That and the right’s decades-long war on Roe v. Wade. There’s just no way he nominated Kavanaugh without total confidence in his opposition to Roe.
Kavanaugh recently sent a signal of his leanings in a dissent in the D.C. Circuit case concerning a pregnant, detained immigrant minor, J.D., who wanted an abortion. The original panel sided with the Trump administration, agreeing it could deny J.D. access to abortion. It was up to her to seek it, not the government to provide it, regardless of her detention. That’s a functional denial of her constitutional right to choose to terminate her pregnancy.
When the full court reconsidered the issue, a.k.a. sat en banc, a majority sided with J.D. Not so Kavanaugh, who opened his dissent with outright rudeness: “The en banc majority has badly erred in this case.” He characterized the decision as creating a “new right” to “abortion on demand.” What else does his dissent tell us? He’s fine with de facto denial of abortion.
Trump is also relying on Kavanaugh to bring down the Affordable Care Act. He may get that opportunity sooner rather than later if confirmed. There’s one major suit in the works: the Trump administration and a cadre of red states are arguing that the ACA’s protections for pre-existing conditions are unconstitutional. Kavanaugh dissented from a D.C. Circuit Court of Appeals opinion upholding the ACA on the grounds that it was premature to hear it, so we didn’t get much of a preview there. Keep in mind, though, he’s argued that the president doesn’t have to enforce a law even if a court declares it constitutional.
With Kavanaugh on the court, conservatives would be able to formalize their perverted notion of “religious liberty,” licensing discrimination nationwide. Originally, religious freedom referred to a negative right, the right to practice religion free of interference. The far right wants to redefine it as an affirmative right to discriminate—against women, LGBT people, whomever—on the basis of religion.
As on other issues, Kavanaugh signaled he is receptive to that argument without fully committing to a controversial position, a no-no for judges aspiring to join no Supreme Court. That tack has left social conservatives dissatisfied, but there’s little doubt he’ll side with them. When religious organizations requested a rehearing en banc in a case challenging the Affordable Care Act’s contraceptive mandate, Kavanaugh dissented from the denial to say he would “grant rehearing en banc and rule for the plaintiff religious organizations.” Imagine what other requirements Kavanaugh could find to unconstitutionally burden the free exercise of religion!
Kavanaugh would also help the conservative bloc raze the regulatory state, endangering millions of Americans. This issue’s a dry one, so stick with me.
One of Kennedy’s final bombshells before retirement was a dissent criticizing Chevron doctrine, the legal principle that courts should defer to agencies’ interpretations of relevant laws. Kavanaugh would gladly pick up where Kennedy left off: Unlike Kennedy, who hitherto stopped short of explicit criticism, Kavanaugh has called Chevron doctrine “troublingly imprecise and uncertain.”
What happens if Chevron doctrine falls? Judges, not agencies, get to decide what regulation is authorized, reasonable, and effective. Among other problems with this arrangement, judges lack the knowledge and expertise to take over rule-making. The most likely scenario is that federal judges—all too many of whom are Trump appointees—will just kill regulations.
Judicial interference accounts for the EPA’s failure to ban asbestos:
Over 25 years ago, EPA had tried to employ [the Toxic Substances Control Act] to protect the public from asbestos. The Agency spent 10 years analyzing asbestos’ effects on health and considering policy options along with their economic implications. After this exhaustive investigation, documented in over 45,000 pages of supporting materials, EPA issued a final rule that called for a phased-in ban on the use of asbestos in commercial products.
But EPA’s efforts to protect the public were rejected. Asbestos manufacturers sued, contending that EPA’s meticulous decision-making was still inadequate to meet the onerous standards of TSCA. A court agreed, vacating the rule in 1991 on the basis that “EPA failed to muster substantial evidence to support its rule” under TSCA’s mandates—despite the Agency’s voluminous record justifying a phase-out of asbestos. Following this ordeal, EPA all but gave up, never again trying to ban a chemical under the old TSCA.
Asbestos killed as many as 15,000 and no fewer than 12,000 people in the United States each year from 1999 to 2013.
With Chevron gone, thousands of rules and regulations—which take agencies years to draft, issue, and implement—protecting health, safety, and security, among other basic concerns, would be on the chopping block.
If Kavanaugh gets the rest of the court onboard with his even more aggressive version of Chief Justice John Roberts’ “major rules doctrine,” any rule not explicitly called for and fully defined by Congress in a statute would be invalid. Why? Because Kavanaugh rejects the idea that a statute authorizing an agency to make a determination, i.e., whether ISPs are telecommunication providers, is valid; rather, he’d put the burden on the statute.
The net effect of Kavanaugh’s positions on regulation, if adopted by the majority, would be to render most rules and regulations in the United States vulnerable to judicial negation and render agencies powerless.
Kavanaugh opposes independent agencies altogether. He wrote the D.C. Circuit opinion prescribing the demise of the Consumer Finance Protection Bureau, an independent agency created by Congress to protect consumers from predatory institutions in the wake of the financial crisis. CFPB is responsible for things like ensuing credit reports are affordable, barring discrimination in lending, and preventing credit card companies from exploiting users.
In the CFPB opinion, Kavanaugh characterized independent agencies as “a headless fourth branch of the U.S. Government” exercising “enormous power.” “Because of their massive power and the absence of Presidential supervision and direction,” Kavanaugh threatened, “independent agencies pose a significant threat to individual liberty and to the constitutional system of separation of powers and checks and balances.”
It’s Kavanaugh who threatens the balance of powers. Trump’s team admitted to investigating Kavanaugh’s position as to whether the president can be indicted for a crime while in office. As legal whiz Adam Bonin noted, Kavanaugh was the sole short-lister who’s on the record on the topic. And wow is his position clear: Kavanaugh wrote a law review article that proposed passing a law to ensure the president is protected from criminal investigation or prosecution, thus shielded from the judiciary’s scrutiny.
Fall asleep cursing Kennedy’s name; wake up and fight the Kavanaugh confirmation.
