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Brett Kavanaugh, Trump’s Supreme Court Pick, Will Drive U.S. Law Hard to the Right

Judge Brett Kavanaugh, President Donald Trump's Supreme Court nominee. (Alex Brandon / AP)

President Trump announced the nomination of ultraconservative District of Columbia Circuit Judge Brett Kavanaugh to the U.S. Supreme Court on Monday night. Short of selecting 7th Circuit Judge Amy Coney Barrett, a religious zealot who belongs to the fringe Catholic cult People for Praise and was reportedly among the finalists for the nod, Trump could not have chosen a candidate who poses a greater threat to progressive values and causes.

Since President George W. Bush appointed Kavanaugh to the appellate bench in 2006, he has amassed a record that shows extreme hostility to the rights of consumers, voters, women, gays and lesbians, workers and immigrants. If confirmed, Kavanaugh will take the seat vacated by Anthony Kennedy, the panel’s most frequent “swing voter,” who announced his retirement late last month. The nominee would give the court a solid five-member right-wing majority.

There is little that Senate Democrats, who hold only 49 seats, can do to prevent Kavanaugh from being confirmed, unless the party holds together to block the nomination (not likely) and one or more Republicans defect (even less likely).

Elections have consequences. One of the most disastrous results of Trump’s 2016 election is that the former-reality-TV-show-host-turned-most-powerful-man-in-the-world has gotten the chance to remake the Supreme Court. And he has made the most of the opportunity, stacking the nation’s highest judicial body with two young, hard-right conservatives, both recommended by the Federalist Society and the Heritage Foundation.

Last year, Trump replaced the deceased firebrand Antonin Scalia with Neil Gorsuch, dubbed by many legal commentators as “Scalia 2.0” for his doctrinaire adherence to Scalia’s “originalist” theory of jurisprudence, which holds that the Constitution should be interpreted according to the meaning it had for the Founding Fathers. A young whippersnapper by judicial standards, Gorsuch won’t turn 51 until August. Barring an untimely demise, he’ll be on the bench for two or three decades, reshaping our legal landscape.

So would Kavanaugh, who is 53, and who, like Gorsuch, is a committed originalist.

More than likely, Kavanaugh’s obeisance to conservative legal doctrine is not all that drew him to Trump. The president probably also had the Mueller investigation in mind when he made the pick. In 2009, Kavanaugh authored an article for the University of Minnesota Law Review in which he argued that sitting presidents should be immune from both civil suits and criminal prosecutions. Who better than Kavanaugh (along with Samuel Alito, Gorsuch and Clarence Thomas) to protect Trump against special counsel Robert Mueller should issues involving the Russia investigation reach the Supreme Court?

So let the Mueller probe be blocked, and let the dirges play for abortion rights, affirmative action and possibly same-sex marriage. Expect the Affordable Care Act to be toppled once and for all, and the Consumer Financial Protection Bureau and the Environmental Protection Agency to be gutted by new adverse rulings.

We’re in for a dark period. Let’s just hope that Justices Ruth Bader Ginsburg, 85, and Stephen Breyer, 79, can hang on until the 2020 election, and that Americans exercise better judgment when they next cast their ballots for president.

Bill Blum
Contributor
Bill Blum is a former judge and death penalty defense attorney. He is the author of three legal thrillers published by Penguin/Putnam ("Prejudicial Error," "The Last Appeal" and "The Face of Justice") and is a…
Bill Blum

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