Democrats disappoint
Republican ends hearing by defending Nixon
Kavanaugh is the culmination of a 40+ year right wing project kicked off by the Powell Memo
Judge Kavanaugh’s US Supreme Court Senate confirmation hearing just ended.
Just when you thought the Republicans could not go lower, in his final move before adjourning the Kavanaugh confirmation hearing, Senator Kennedy [R-La.], attacked John Dean (of Watergate fame), essentially called him a “rat”, and said Dean – not NIXON – hurt the country.
Before the hearings began I laid out my concerns, see: Confirmation of Judge Kavanaugh Would Cement Corporate Capture Of The Supreme Court.
[Update – 9/8/18 – Nader agrees: Ralph Nader: Kavanaugh Is a Corporation Masquerading as a Judge]
Some of them were addressed during the hearings by Senators Whitehouse, Blumenthal, Coons, and Durbin. Whitehouse did by far the best job. And Cory Booker is a lightweight and self promoter.
The testimony of final panelist, Georgetown Law School Professor Lisa Heinzerling, echoed my concerns and hit the nail on the head, including the delegation doctrine issue:
The opinions that Judge Kavanaugh has written in his twelve years as a judge make clear that, as a justice, he would unsettle the independence, legal authority, and protective missions of administrative agencies. He would do so by discarding legal precedents that have long allowed Congress to structure our government and to address the pressing problems of the day without undue interference from unelected judges. He would work in the name of a cramped and skewed “liberty” that, in his hands, amounts to a freedom to harm other people with minimal government constraint. …
These legal issues can sound quite abstract; they might even seem unconnected to people’s daily lives. But the Supreme Court’s approach to these questions has a profound effect on our everyday lives. One can name any problem that matters – environmental destruction, workplace hazards, sexual harassment, inadequate health care, financial fraud, food safety, and on down the line – and one will find that the day-to-day work of addressing that problem is done by an administrative agency. In each case, Congress will have made a judgment about the degree of independence the agency needs to do the job. Congress will also have given the agency instructions, some clear and some unclear, about how the agency should go about its work. Subjecting these agencies to more political meddling from the president, as Judge Kavanaugh thinks we should, would make these agencies more likely to work in the service of the privileged few rather than in the service of the broad public. Stripping them of legal authority to address the major issues we face, such as climate change and governance of the Internet, would leave us unprotected against new threats and new problems. The legal issues may seem abstract, but the tangible consequences are profound….
Judge Kavanaugh would distinguish “major” rules from “ordinary” rules by considering “the amount of money involved for regulated and affected parties, the overall effect on the economy, the number of people affected, and the degree of congressional and public attention to the issue.”19 Where these factors are present, Judge Kavanaugh would hold that an agency may not take a regulatory action at all without a clear legislative go-ahead. Judge Kavanaugh would, in other words, disable agency action in precisely the circumstances where it is most important. He has already announced that rules governing the Internet and regulating greenhouse gases are off-limits under his theory.20 Given Judge Kavanaugh’s criteria for identifying “major” rules, it is hard to imagine any significant regulatory proceeding that could not be subject to his new, power-stripping interpretive theory. ..
Consider Judge Kavanaugh’s opinion in Coalition for Responsible Regulation v. EPA.24 Judge Kavanaugh dissented from the denial of rehearing en banc in this case, which challenged an Environmental Protection Agency (EPA) rule requiring permitting for greenhouse gas emissions from stationary sources. Uncritically citing the Chamber of Commerce’s claim that EPA’s rule created “the most burdensome, costly, far-reaching program ever adopted by a United States regulatory agency,” Judge Kavanaugh argued that the “major consequences” engendered by the rule counseled against reading the Clean Air Act to require permitting for greenhouse gas emissions.
( a variant of the concept of the need for a “clear legislative go-ahead” was attempted by a bill that was heard but ultimately rejected by the NJ Legislature. That bill would have required explicit legislative authorization before a State agency could adopt guidance documents necessary to regulate. I wrote about that here).
By “liberty”, Kavanaugh really means “property” and corporate “profits” over people.
Here’s how professor Heinzerling sees that:
The touchstone of Judge Kavanaugh’s work as a judge is the separation of powers, and the motivating force behind his focus on the separation of powers is the protection of liberty. Unfortunately, however, the “liberty” Judge Kavanaugh embraces is badly skewed, and terribly small: it is the liberty of powerful groups to do their business unhindered by government, rather than the liberty that comes from meaningful government protections against harmful human behavior. In the name of “liberty,” Judge Kavanaugh has rejected rules addressing toxic air pollution, climate change, workplace safety, financial fraud, and more – without acknowledging that in such cases, “liberty” sits on both sides of the legal question. There is, on one side, the liberty of regulated groups to go about their business unimpeded by federal law. There is, on the other, the liberty of the rest of us to go about our lives – at home, at school, at work, and in our communities – with a reasonable assurance that the government has our back in protecting us against coming to harm at other people’s hands.
And here’s how professor Heinzerling raises concerns about Kavanaugh’s radical views on the delegation doctrine:
Congress often delegates authority to agencies to address broad problems whose full dimensions and manifestations are not immediately clear. Congress does so in the expectation that agencies will study and monitor the problems and take regulatory action as necessary to address them. Judge Kavanaugh, however, would require linguistic precision from Congress if it wants to authorize an agency to take on a specific new problem. He looked, for example, for such precise language in considering whether EPA could require permits for greenhouse gases and whether OSHA could fine SeaWorld for failing to protect trainers of killer whales against avoidable risks. In doing so, he has simply failed to listen to Congress’s instructions to these agencies to continue to investigate and address new problems. Congress has spoken, but Judge Kavanaugh hears only crickets.
Over the last 4 days, I was able to watch about half (over 15 hours) of those hearings, live Tweeted, and listened to NPR coverage and read some NY Times coverage. The Times ignored Senator Whitehouse’s withering statement – see below – here’s one of the few good articles – but far too little, far too late: Leaked Kavanaugh Documents Discuss Abortion and Affirmative Action
I was pleased by Senator Whitehouse’s statements and line of questions that focused on corporate power, right wing foundations, Republican donors, and a documented record of biased Supreme Court decisions favoring corporate interests (see: WHITEHOUSE REVEALS KAVANAUGH’S PRO-CORPORATE, RIGHT-WING RECORD IN SCOTUS HEARING OPENER:
Lots of big Republican influencers are polluters. They like to pollute for free.
So of course the Roberts Five delivers decisions that let corporate polluters pollute. To pick a few: Rapanos, weakening wetland protections, 5-4; National Association of Home Builders, weakening protections for endangered species, 5-4; Michigan v. EPA, helping air polluters, 5-4; and, in the face of emerging climate havoc, there’s the procedurally aberrant 5-4 partisan decision to stop the EPA Clean Power Plan.
But I come away deeply disappointed, and not just because Kavanaugh very likely will be confirmed.
I was disappointed by the democrats, the media, and the liberal/progressive community that opposed his nomination.
The Democrats disappointed me by:
1) lack of effective questioning of Kavanaugh’s actual record, including his written legal opinions and the policies he was very likely involved in during his time in the Bush White House;
2) by the lack of focus on substantive issues and connection of these issues to the lives of people, e.g. labor, environment, consumer protection, health and safety, etc. Instead, the Dems placed heavy strategic focus on process issues and on sterile narrow framing of issues like a lack of documents or adequate vetting;
3) for the most part, their poor choice of substantive issues to consider;
4) by ignoring or superficially addressing absolutely critical issues, like climate change, corporate power; economic regulation, the role of government, threats to voting rights, and at best, gross insensitivity and at worse outright attacks on and threats to democratic institutions, values and norms;
5) by their strategic disarray and undisciplined diversions;
6) by the way the pulled punches and failed to call Kavanugh a liar for false and misleading prior testimony;
7) by the way they ducked Kavanaugh’s radical right wing views on “religious liberty” and his total disregard for the establishment clause and the Jeffersonian “Wall” between church and state;
8) by the way they sat on sham “confidential” documents and when they finally did leak the, by their failure to talk about the implications of the contents of those documents. For example, they didn’t even go as far as the NY Times news coverage of what the leaked documents said (see above); and
9) by their failure to make the affirmative case is support of government and to defend government from the radical right wing attack that Kavanaugh’s nomination represents.
Finally, substantively, although it is taboo to say it in these #metoo times, the Democrats placed far too much emphasis on abortion and Roe v. Wade, to the detriment of other equally or even more important issues. Even that emphasis, however, downplayed discussion of the important individual privacy interests that the Roe decision protects and how those privacy protections are threatened by Kavanaugh’s right wing judicial philosophy.
The press (and I only followed NPR, which was atrocious coverage, and the NY Times) failed to write any of this stories or explain to the American public what was at stake and the nasty games the Republicans were playing.
Aside from the protests, I didn’t get a sense that the advocacy groups had any voice or influence at all.
There were times during the hearing – I’m thinking of Kavanaugh’s revealing discussion of the legal strategy of Thurgood Marshall that lead to the historic victory in the Supreme Court’s landmark Brown v. Board of Education decision – where Kavanaugh did all but openly admit his own strategy to radically reverse many Supreme Court precedents. He even said dissents are written for future generations (as a foundation for reversing precedents). His own radical dissents do just that.
Kavanaugh discussed Thurgood Marshall’s “litigation strategy”, e.g. to bring cases and build up a body of law that was inconsistent with Plessy “separate but equal” in order to pave way for reversal under Brown v. Board.
That sounds an awful lot like what the right wing is doing now on many issues.
That’s way beyond a right wing Dog Whistle.
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