Brett Kavanaugh—This Confirmed FASCIST Must NOT Be Confirmed to the Supreme Court

July 16, 2018 | Revolution Newspaper | revcom.us

 

On July 9, Donald Trump announced the nomination of Brett Kavanaugh, a longtime and committed fascist, to replace Justice Anthony Kennedy on the U.S. Supreme Court. Four of the Court’s nine justices are already reactionaries, and all of Trump’s potential nominees have been vetted by right-wing legal experts to ensure their “reliability.” So it was a certainty that whoever Trump picked would (if confirmed by the U.S. Senate) give the Court a pro-fascist majority that would profoundly alter the legal, social, and political landscape of the U.S.

For that reason, even before the announcement, there was widespread and heartfelt clamor from liberals and progressives for the Democratic Party to really throw down against confirmation, and to prevent Trump from putting anyone on the Court. There were calls for ongoing street protests; Michael Moore called for a million people to surround the Capitol building; others suggested that the Democrats could en masse boycott the Senate, preventing it from functioning. People sensed that this is an emergency and demanded that the people they currently look to for leadership act accordingly.

Instead, the Democrats initially responded with a “whaddya gonna do” shrug—Senator Dick Durbin rushed to say that there was basically no way to block Kavanaugh, and Senator Richard Blumenthal went so far as to say that “the Senate should do nothing to artificially delay the nomination”!

This elicited real anger from their base—that is, as Bob Avakian put it, the people the Democrats “try to appeal to—not that the Democrats represent their interests, but who are the people that the Democrats try to appeal to” (from BAsics 3:10). And the leadership quickly realized that they could lose their political grip on that base if they didn’t at least go through the motions of trying to block the confirmation. A senior Democratic aide told The Intercept: “If we don’t put up a fight, there’s going to be hell to pay.” So they went to “Plan B”—which mostly boils down to promising to ask “tough questions” during confirmation hearings, especially about Kavanaugh’s views on Roe v. Wade, the Supreme Court decision that legalized abortion and that is right now hanging by a thread.

This is bullshit—it is a charade, like if the head of the National Rifle Association was nominated and the Democrats said they were going to ask “hard questions” about his position on gun control! Kavanaugh’s reactionary views on abortion (and a whole range of other issues) are quite clear. Confirmation hearings are just an opportunity for him to spread confusion about this (including by lying about what he will do), calm down progressives, and provide cover for wavering senators to vote for him based on his “performance” at the hearings.

What is needed is not “tough questions” but furious rejection of the right of this illegitimate fascist regime to consolidate its grip on the judicial branch of government, and intense struggle not only to block this, but to drive out the whole regime.

Who Is Brett Kavanaugh?

Behind the carefully tailored “aw shucks” humble pie bullshit and alleged concern for “diversity” and for women on display the night Trump announced his nomination, Kavanaugh is a hard-core fascist who doesn’t just want to turn back the clock to the 1950s but in significant ways to the 1650s, before Europe’s “Enlightenment” period.

In a September 2017 speech, Kavanaugh described how, as a Yale Law student in 1987, his “first judicial hero” was Chief Justice William Rehnquist. What did Kavanaugh admire about Rehnquist? First and foremost, that Rehnquist was one of two justices who dissented against Roe v. Wade, and that even after being defeated, Rehnquist battled to overturn Roe for decades.

It’s worth looking at this carefully. Kavanaugh repeats Rehnquist’s argument that abortion was an “unenumerated” right—that is, the Constitution does not explicitly grant it—and that the right to abortion is not “rooted into the traditions and conscience of our people.” And therefore, it should not be added into or inferred from the Constitution.

In other words, because a woman’s right to decide whether or when to have a child was not mentioned in the Constitution in 1789, and because it goes against the traditional values of “our people” (and really this means the conservative white Christians that the fascists look to as the “true” America), this right should not be recognized or enforced.

Here it is important to note that the legal basis for Roe v. Wade—which was that the Constitution has an implicit (i.e., not “enumerated”) right to privacy, and that government interference in the personal medical decision of choosing an abortion would violate that right—is the same basic argument that was used to legalize birth control in 1965 (Griswold v. Connecticut.) And birth control is every bit as much a target of the Christian fascists as abortion, because their real concern is not the “rights” of “unborn babies,” but the enslavement of women by reducing them to bearers and rearers of children. So once Roe v. Wade falls, it is very likely that Griswold will be targeted and overturned by the same logic.

And think about what other rights would not pass muster with these criteria. Were gay rights “enumerated” in the Constitution, and are they supported by the conservative white Christians today? What about the right of interracial marriage? The right of Black people to live, work, or for that matter walk, where they want, free from racist discrimination? Rehnquist’s—and Kavanaugh’s—reasoning is legal justification for the fascist vision of “Making America White (and Christian) Again” and of slamming women back into “their place.”

This legal logic (which Kavanaugh and other fascists call “originalism”) basically says that the laws governing people today should be grounded in the outlook and orientation of “the Founders,” the cabal of men—mostly slave owners—whose Constitution deemed Black people as three-fifths of a human being and did not grant women (or even white men who didn’t own property) the right to vote! (The “originalists” do accept—or at least pay lip service to accepting—the 14th Amendment, which passed after the Civil War and was supposed to extend full rights to Black people, and the 19th Amendment passed in 1919, granting women the right to vote. But this does not change the fact that their point of departure for shaping law today is an unambiguous celebration and idealization of a Constitution that provided an openly white supremacist and male supremacist framework for society.)

How fucked up does a society have to be for this to be a mainstream legal doctrine discussed with serious respect even by its liberal critics? And how terrifying is it that advocates of this theory are on the brink of securing control of the whole judicial system?

But Kavanaugh’s “appreciation” of Rehnquist does not stop there—he proudly points to Rehnquist’s support for prayer in school, and open opposition to the separation of church and state! Kavanaugh said, “Rehnquist was central in changing the jurisprudence and convincing the court that the wall metaphor [i.e., a “wall” separating church and state] was wrong as a matter of law and history.” This is a rejection not only of a principle that was expressed explicitly by Thomas Jefferson and which does rest firmly on the “original text” of the Constitution, but it is going against the whole thrust of the Enlightenment of 16th and 17th century Europe, when the domination of religious ignorance and the “worldly” power of the Church were rejected in favor of secular (nonreligious) government and the social authority of science as the way to understand reality. And it is right in line with today’s Christian fascist movement, which is at the core of the Trump/Pence regime and seeks to impose its brand of religious fanaticism on society as a whole. The achievement of that theocratic vision will be brought much closer by Kavanaugh’s confirmation.

Kavanaugh’s Record as a Fascist Legal Hack and Jurist

Kavanaugh didn’t just “admire” Rehnquist, he was part of a reactionary movement in the legal arena (of which the Federalist Society is a major expression) to “retake” society with their reactionary ideology and program.¹

For 20 years, Kavanaugh was at the legal forefront of almost every major battle the fascists waged. From 1995-97, he played a major role in the drive to impeach and remove Bill Clinton for having an affair with White House intern Monica Lewinsky. (Go here for an in-depth and still highly relevant analysis by Bob Avakian of this first major grab for power by the Christian fascist forces in the U.S. ruling class.) In this capacity, Kavanaugh insisted on the intimate, quasi-pornographic interrogation of Clinton about his sexual acts, which was later published in Ken Starr’s report. And Kavanaugh wrote the main legal arguments for impeachment.

In the spring of 2000, Kavanaugh represented Cuban-American reactionaries in Miami who were trying to prevent the return of six-year-old Elián González to his father in Cuba, after his mother’s death. In November of 2000, after the close election between George W. Bush and Al Gore, Kavanaugh was on the Bush legal team that argued successfully before the Supreme Court to stop a recount of Florida votes, which essentially threw the election to Bush, even though Gore had won the popular vote. Also in 2000, Kavanaugh represented Florida governor Jeb Bush in a failed effort to divert public education money to support private religious schools.

From 2003 to 2008, Kavanaugh served as counsel and then as staff secretary to George W. Bush. During this whole period, White House legal staff were involved in crafting legal justifications for the administration’s practice of indefinite detention of “enemy combatants”—a made-up term used to get around requirements under U.S. and international law for humane treatment of prisoners of war—and of widespread torture of the detainees both at Guantánamo and at CIA secret “black sites” around the world. In testimony before the Senate in 2006, Kavanaugh claimed to not have participated and to know nothing about any of this, which was considered far-fetched at the time, and since then it has come out that he concealed at least one meeting he was involved in on these policies.

In 2006, Kavanaugh was confirmed as a federal appeals court judge in Washington, DC. His decisions, dissents, and other public writings and statements since then continued to reveal someone who is consistent in supporting expansive government power to torture and wiretap, while limiting government power to restrict corporate plunder and destruction of the environment. Kavanaugh has repeatedly ruled against the First Amendment rights of workers to protest, while affirming that “The First Amendment ... protects the right of individual citizens [i.e., very wealthy people] to spend unlimited amounts to express their views about policy issues and candidates for public office,” as well as the “First Amendment” right of conservative Christians to discriminate against gay people.

And very recently, Kavanaugh dissented from the DC court’s ruling to allow a pregnant teenager, an immigrant being held in detention by the federal government, to obtain an abortion. While this decision is too complicated to fully analyze here (see revcom article on the Supreme Court ruling in relation to this), two things stand out: first, while acknowledging that Roe v. Wade determines that the young woman has the right to an abortion, he repeatedly asserts the government’s “permissible interests in favoring fetal life, protecting the best interests of the minor, and not facilitating abortion” without ever indicating any interest in the right of this young woman to choose not to have a child. And second, he says repeatedly—and sarcastically—that the decision to allow the abortion is “ultimately based on a constitutional principle as novel as it is wrong: a new right for unlawful immigrant minors in U.S. Government detention to obtain immediate abortion on demand.” As if there is something wrong with young women caught up in the Trump/Pence regime’s assault on immigrants having access to crucial and liberating health care!

What comes through in this is the view of someone who is opposed to Roe v. Wade and looking for any argument to restrict it, but unable—from his position, at that time, on a lower court—to do anything to overturn it. If Kavanaugh is confirmed to the Supreme Court, he will no longer be bound by precedent, but will be in a position—along with the other fascist justices—to overturn old precedents and create new ones in line with their reactionary views.

A Staunch Defender of Presidential Power

The other “outstanding” position of Brett Kavanaugh is that he is way out there in supporting unfettered fascist executive power. In 2009, after serving in the George W. Bush administration, he did a complete turnabout from his aggressive role in going after Bill Clinton for sexual impropriety and wrote an article declaring that presidents should be protected—exempt—from all lawsuits or legal investigations. He argued that subjecting presidents to what he deemed “time-consuming and distracting” legal matters—to which every other person in the U.S. is subject—“would ill serve the public interest, especially in times of financial or national security crisis.”

This article was written in 2009, before Trump was president. But in a legal opinion written in January of this year—well after Trump became president and was well along in the process of concentrating all executive power solely in his own hands, railing against any legal constraints and subordinating the independence of other federal agencies that are part of the executive branch—Kavanaugh wrote: “To prevent tyranny and protect individual liberty, the framers of the Constitution ... lodged full responsibility for the executive power in a president of the United States, who is elected by and accountable to the people.”

Taken together, Kavanaugh emerges as someone who will stand strongly against any efforts, either from Trump’s ruling class rivals or from broader sections of society, to “subject” Trump to the rule of law, or to limit his unprecedented accumulation of power, what was known in Nazi Germany as “Führer rule.”

At Stake—the Future of Humanity and the Planet

What is at stake with the Kavanaugh nomination is not an “erosion” of our civil rights and liberties, as it is often put by liberal commentators. While no one can say with absolute certainty what Kavanaugh will do, or how other forces will react, his confirmation to the Supreme Court is very likely to represent a major leap in the consolidation of a fascist regime, the solidification of Donald Trump’s position “above the law” and in particular in the slamming back into place of nightmarish conditions for women and LGBTQ people.

It is not acceptable to “go through the motions” of fighting this, all the while knowing that and basically telling people that he will be confirmed, as the Democratic Party is doing. What is needed is an all-out, determined fight involving growing numbers of people in the streets and fighting in many other arenas, and doing this as part of gathering strength to drive out the regime altogether.

Anything short of that is, frankly, capitulation to a fascist regime that will wreak a very heavy toll on humanity and on the planet.

1. To be clear, although it is not the subject of this article, the judicial system that people like Kavanaugh rebelled against was already quite reactionary. Among other things, it was the instrument for locking up millions of Black, Latino, Native, and poor white people in a thirty-year orgy of mass incarceration that aimed to control and suppress populations who had no future under this system. But even that was not reactionary enough for these fascists. [back]