Brett Kavanaugh is now a justice of the Supreme Court. He is there only because he is what he showed himself to be in the Senate hearings: a vicious, partisan operative utterly committed to a right-wing judicial activism that will inevitably lead to a constitutional crisis.
The Republicans ensured that there would not be a full investigation of the charges against Kavanaugh, yet Maine Sen. Susan Collins dishonestly called the cribbed FBI investigation comprehensive.
Yet Kavanaugh revealed in the hearings exactly who he is — and why Trump chose him and Republicans lined up to confirm him, no matter what the evidence. A closed-minded partisan zealot, he bizarrely embraced the most fantastical of conspiracy theories, including somehow that all this was revenge hatched by the Clintons. He demonstrated stunning contempt for senators — yet Republican senators, led by Judicial Committee Chairman Charles Grassley, no longer have any institutional pride. The Senate be damned; they are purely into tribal partisan politics.
They stuck with Kavanaugh because they know who he is. He claims to be an “originalist” and “textualist” who only applies the Constitution, but that is simply a threadbare cover. He was vetted and approved by the Federalist Society and the Heritage Foundation — both dedicated to promoting activist right-wing lawyers who will overturn precedent to serve conservative ends.
Kavanaugh’s ascension to the court locks in a five-person majority for an extreme activist position. We’ve already seen what the conservative gang of five is prepared to do. They ignored unanimous Congressional intent to gut the Voting Rights Act. They overturned decades of precedent to empower corporations to pour money into elections. They trampled precedent to gut the ability of public employee unions to collect dues from the members they represent.
The threat Kavanaugh poses to Roe v. Wade, and a woman’s right to control her own body is clear. Less attention has been paid to his consistent effort to protect corporations from accountability. When faced with a choice between the polluter and the poisoned, Judge Kavanaugh stands with the polluter. When faced with a choice between the boss and the worker, he stands with the boss. When faced with a choice between a predator corporation and a consumer, he stands with the predator.
Public Citizen did an analysis of Judge Kavanaugh’s opinions on the U.S. Court of Appeals in cases where the court was divided. They found that nearly nine of 10 times, Kavanaugh ruled against the public interest and for the corporate interest. In 17 cases involving worker rights, he stood with the employers 15 times. In 13 cases on the environment, he was with the polluter 11 times. In 22 cases between corporations and consumers, he stood with the corporations 18 times. On seven cases involving police abuse or human rights, he ruled against the victims in all seven.
In the Senate hearing, Kavanaugh vowed to have a partisan frame. Blaming Democrats for challenging his nomination, he pledged that “what goes around, comes around.”
The right wing has consolidated a majority on the court. It is a gang of five that is increasingly out of step with a society that grows more diverse, more inclusive, and is increasingly challenged by corporate corruption, big money politics, obscene inequality and catastrophic climate change. The gang of five is likely to stand in the way of fundamental reforms vital to this country.
The only thing that can save Democracy is the democracy. Even the Supreme Court responds to election returns. If Trump Republicans remain in control of the Congress and the White House, the gang of five will be emboldened. If voters rebuke them at the polls — if they elect progressive majorities focused on the changes we need — the gang of five will be more cautious.
Judge Kavanaugh is probably impervious to the will of the people, too bitter, too ideological, too zealous to be reached. But Chief Justice John Roberts and perhaps Neil Gorsuch may understand that their own legacy and the court’s legitimacy will be at risk if they try to defend the rich and corporations from a people demanding justice. Our task is clear. Don’t mourn, organize.
With this appointment, the Senate has traduced its reputation and abandoned its responsibilities. Now it is time for the people to speak.