What’s at Stake: Judge Kavanaugh’s Supreme Court Nomination

For over 30 years, the NAACP Legal Defense and Educational Fund, Inc. (LDF) has conducted a full and thorough analysis of the civil rights record of each nominee to the United States Supreme Court. Following our review, we issue a comprehensive report setting forth our analysis of that record and indicating our view of the candidate’s likely approach to deciding cases involving core questions of civil rights law and practice. Consistent with this longstanding practice, we have begun our review and analysis of Judge Kavanaugh’s voluminous, decades-long record in public life, and expect to issue our full report later this summer.


Five Quick Facts about the Kavanaugh Nomination:

1. The President and his administration continue to sit under the cloud of serious investigations, which calls into question the legitimacy of the very process through which he occupies the office of the presidency and every power, including the power to appoint a Supreme Court justice, that flows from it.

As of July 2018, Special Counsel Robert Mueller’s investigation into Russian interference in the 2016 election had generated criminal counts against thirty-two people and three companies. The investigation has already established that a foreign power interfered in the 2016 presidential election, and the investigation of this administration’s potential role in that interference is still ongoing.

2. It is likely that the Supreme Court will eventually have to address cases stemming from this investigation.

Judge Kavanaugh is on record arguing that indicting a sitting President would violate executive power and advocating that the President be legally exempt from personal civil suits and criminal investigations while in office. It’s clear that the President is doing his best to handpick someone who may ultimately decide his fate.

3. At a time when judicial backbone is most needed, Judge Kavanaugh has given little indication that he would stand up to the President when it matters.

Think back to his nomination. When the country most needed to see his independence, Judge Kavanaugh chose to claim that he had “witnessed firsthand” the President’s “appreciation for the vital role of the American judiciary.” That’s contradicted by almost everything this President has actually said. Worse, he went on to claim that no President had ever “talked with more people from more backgrounds” to “seek input about a Supreme Court nomination.” But we’ve long known that the President selects from a list curated by the Federalist Society. It’s dangerous when judges choose to describe the world as the President wishes it were rather than as it is. But it’s right up the President’s alley, and it fits neatly with Judge Kavanaugh’s alarmingly broad views on presidential power. 
 
For example, earlier this year he penned a bristling dissent from the decision of his court that upheld the Consumer Financial Protection Bureau (CFPB) as constitutional. Congress created the CFPB after the 2008 financial crisis to protect Americans from wrongdoing in the financial markets. While it protects all Americans, the CFPB is particularly important for communities of color. But Judge Kavanaugh believed that the CFPB’s design risked “tyranny” and threatened “individual liberty” because it improperly reduced the President’s power. Fortunately, the D.C. Circuit disagreed. But Judge Kavanaugh’s excessive deference to the President imperils our democracy at the moment when a meaningful check is most needed.

4. Both before and after taking the bench, Judge Kavanaugh has already shown a disturbing willingness to cut back on Fourteenth Amendment rights.

In 1999, along with Robert Bork, he filed an amicus curiae brief on behalf of the anti-affirmative-action Center for Equal Opportunity, which contended that the Constitution “does not allow government racial classifications.”And last year he disagreed with his court’s decision to stop the government from blocking an undocumented teen’s access to an abortion she needed. Judge Kavanaugh dismissively described the teen’s constitutionally guaranteed right as “abortion on demand” and argued that “delay in the abortion” was unobjectionable. LDF is gravely concerned that this reflects a deeper hostility towards the hard-won liberties secured by that Amendment and Supreme Court precedent.

5. Judge Kavanaugh was selected from a list cherry-picked by the Federalist Society, an ultra-right-wing organization that has long worked to stack the courts with judges opposed to the civil-rights principles that LDF fights to defend.

If enacted into law, the Federalist Society’s principles would threaten over 80 years of progress on every imaginable front, from the government regulation that keeps communities clean and safe, women’s right to choose safe abortions, and the very underpinnings of the iconic Brown vs. Board of Education. Whatever Judge Kavanaugh says about his views must be understood in light of the Federalist Society’s core principles.