Sep 8, 2018 at 5:00 AM
As the often tedious questions — and answers — proceed in the process of putting Donald Trump’s newest nominee on the Supreme Court, there are occasional nuggets that should give us pause.
Have no doubt. Brett Kavanaugh, 53, is going to be on the nation’s highest court, ruling on every aspect of American life — workplace, bedroom, voting booth, school room, kitchen, environment, what happens to the body.
He’s careful to tell us, repeatedly, that it’s not that he doesn’t like minorities, workers, women, environmentalists. He simply must abide by legal precedent.
Kavanaugh’s reputation is as an extremely conservative judge. He is considered a proponent of originalism, a manner of interpreting the Constitution that begins with the text and attempts to give that text the meaning it had when it was adopted, and textualism, a method of legal interpretation that relies on the plain text of a statute to determine its meaning. (When the Constitution was written, there were slaves, no environmentalists, women could not vote and workers had no rights.)
So when workers at a horrific slaughterhouse whose bosses made them work in abominable conditions, often for 12 hours at a stretch without overtime pay sued to form a union, Kavanaugh sided with the bosses. Legal precedent. Every other judge that looked at the case disagreed.
Wasn’t that a little awkward, suggested Sen. Dick Durbin, D-Ill.?
Not at all, said Kavanaugh. In fact, he’s proud of that opinion. He followed precedent.
Then there was the 17-year-old girl who came across the border alone, without documents, and found she was pregnant. In the detention center where she was being held, she asked for an abortion. She dutifully went through all the channels — counseling, the waiting period, examination, etc.
Kavanaugh, a federal appeals court judge, decided that she should not be able to get an abortion unless a foster home was found for her to properly advise her. That, of course, would take time. The court was divided and ruled against the Trump administration’s policy of denying abortion to undocumented minors. The girl did get an abortion. But the Supreme Court eventually tossed out the lower court’s ruling although that case was by then moot.
Did Kavanaugh think he might have been wrong to argue for a delay?
No, said Kavanagh. Precedent. She should not make such a decision alone even if the delay meant she no longer would have had a decision to make.
Kavanaugh was asked about his time at the George W. Bush White House when the overriding top issue was torture of suspected terrorists. What was his role in that discussion?
Didn’t have one, he said, despite the fact that he was in the loop at the White House. Just the staff secretary. From 2003 to 2006. Handling every paper that went to the president.
Kavanaugh was caught off guard after he denied knowing about an aide’s theft of senators’ papers during a judicial nomination and then being shown emails by Sen. Patrick Leahy, D-Vt., that he did know.
Kavanaugh has said that a sitting president should not face indictments, subpoenas, investigations or legal actions. At some point, after special counsel Robert Mueller finishes his report on the Trump campaign’s ties to Russia, Trump is likely to go before the Supreme Court on that issue.
Asked if he could reassure the American people that he would uphold the Affordable Care law’s requirement that insurance companies cover pre-existing conditions, Kavanaugh said he could not.
What does he think about millions of Americans being convinced that corporations are treated more fairly before the Supreme Court than individuals are? Not true. It’s all about precedent and the arguments, not who is making them.
After Senate Majority Leader Mitch McConnell, R-Ky., decided that former President Barack Obama could not name Merrick Garland, a highly respected jurist with bipartisan credentials, to the Supreme Court because Obama had only a year left in office, the stage was squarely set for more politicization of the high court. The Senate also decided that it no longer would take 60 votes to confirm a justice, only a majority of 100. The politicization was complete.
Kavanaugh is the icing on the cake.
Ann McFeatters is a columnist for Tribune News Service.