The Looming Threat of the Confirmation of Brett Kavanaugh to the Supreme Court

Kavanaugh Spells EMERGENCY for Women and LGBTQ People

September 3, 2018 | Revolution Newspaper | revcom.us

 

On September 4, the U.S. Senate Judiciary Committee will begin hearings over whether to confirm Brett Kavanaugh to the U.S. Supreme Court. Kavanaugh was chosen by Donald Trump from a list prepared by reactionary legal authorities close to the Federalist Society—a list that was specifically vetted to be sure that all nominees want to overturn Roe v. Wade (the Supreme Court decision that legalized abortion in 1973). The Federalist Society, along with other so-called conservative organizations, have been working for years to establish in the courts a different legal philosophy described as “originalist.” Kavanaugh comes highly recommended by these forces because he has proven that he will be guided by this philosophy in rendering his opinions. This is a major element of cementing a majority of the 9 judges on the Supreme Court who will take on the assignment of reshaping major legal decisions in a more fascist direction, with enduring consequences.

This “originalist” theory of law is also held by Justice Thomas who argued that any “right” that is not explicitly written in the Constitution and not “rooted into the traditions and conscience of our people” does not exist. It is a legal theory that idealizes the Constitution of the U.S. at the time of its founding—which is a time when Black people were slaves, Native people subject to extermination, women legally treated as chattel (property) with no right to vote, own property or to say “no” to their husbands’ sexual demands—including rape—and so on.

Kavanaugh is well known at this point for publicly arguing that a sitting president should be immune not only from criminal indictment, but even from lawsuits or investigations, and for his “robust” and “expansive” view of how much power the president should wield. In brief, Kavanaugh is “the perfect justice” for a fascist regime seeking to concentrate tremendous power in the hands of its leader, Donald Trump, and under legal and political fire for just that.

For this reason—and because his confirmation hearings are taking place in the midst of sharp struggles between pro- and anti-Trump forces within the U.S. ruling class (including “the Brennan Affair” and the death of John McCain)—those issues of executive power will likely be the focus of the hearings. Revcom.us will be writing more about this soon.

Should he be confirmed, Kavanaugh will join four other like-minded justices—Roberts, Alito, Thomas and Gorsuch—giving pro-fascist forces a consistent majority on the nine-member court. This decisive majority will almost certainly unleash these forces to take dramatic steps to overturn social changes brought about especially through the mass upheavals of the 1960s and 70s, and through the broad and determined struggles of LGBTQ people in the last few decades.

Revcom will be writing more on the significance of the impending approval of Kavanaugh to the Supreme Court, and how it relates to the whole long-lasting effects of the fascist regime headed up by Trump/Pence.

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Let’s start with something basic: Women must have the right to decide for themselves when and whether to bear children if they are to be free. This requires access to abortion and birth control on demand and without apology. Yet, as Bob Avakian, the leader of the revolution, has pointed out: “Unbelievable as it may seem, in the 21st century there are still people—including people in positions of power and authority—who are determined to force women to bear children, regardless of the situation, the feelings, and the better judgment of those women themselves. That is a way of enslaving women to the dictates of an oppressive male supremacist, patriarchal system; and that is what the cruel fanatics who are determined to deny women the right to abortion are really all about.”

Now, the Christian fascists that have driven this assault against abortion, as well as the all-around assault on the rights of LGBTQ people and much more, are at the pinnacle of power at the core of the Trump/Pence regime. With the confirmation hearings of Brett Kavanaugh about to begin, society as a whole faces a dangerous “tipping point.”

This must not be allowed. Everyone who refuses to see women and LGTBQ people violently slammed backwards, everyone who recognizes the need to stop the whole Trump/Pence drive towards out-and-out fascism in this country, must raise their voices and put themselves on the line to refuse to accept this.

Kavanaugh’s Record Is Clear—Grave Hostility to Abortion, Birth Control, and LGBTQ Rights

During the confirmation process, Kavanaugh is unlikely to state openly how he will rule in cases around abortion, birth control, LGBTQ rights and more. Democratic Party politicians and pundits will then huff and puff that Kavanaugh is not being forthcoming enough. But, this will be a charade—Kavanaugh’s record is clear: he shares the Christian fascist hostility to women and LGBTQ people being treated as full human beings, and he shares their objective of implementing Christian theocratic rule.

First, Kavanaugh was nominated by Donald Trump who—as a key part of his political alliance with powerful ruling class Christian fascists who helped secure his victory—promised he would only nominate judges who would end abortion rights. To this end, Kavanaugh was vetted and is being celebrated by viciously anti-abortion, anti-LGBTQ Christian fascists.

Second, Kavanaugh is an originalist, someone who thinks that basically, there should be no rights granted that are not explicitly in the text of the Constitution or in an amendment made to the Constitution. In a 2017 speech Kavanaugh upheld his “first judicial hero” William Rehnquist. He celebrated Rehnquist’s dissent from the Supreme Court decision that legalized abortion (Roe v. Wade) and agreed with Rehnquist’s insistence that judges had no business granting rights that were not enumerated (spelled out explicitly) in the original text of the Constitution or in an amendment. By this logic, not only abortion—but also the right to birth control—is invalid, as are decisions like Brown v. Board of Education (the decision that struck down racist segregation), marriage equality, and more.

Third, Kavanaugh has interpreted religious freedom in a way that would open the door wide to Christian fascist theocracy. In 2015, Kavanaugh sided with Priests for Life when they objected to being required to fill out a form to exempt themselves from having to provide birth control coverage to their female employees. Priests for Life insisted that filling out such a form would make it possible for the insurance company to provide birth control coverage independently of them and that this violated their religious liberty. Ominously, Kavanaugh agreed. By this logic, Christian fascist bigots could exempt themselves from all kinds of laws—like providing services to LGBTQ people, nonbelievers, religious minorities, and others—as long as they claim that doing so violates their sincerely held religious views.

Finally, in case there was any room at all for confusion, earlier this year Kavanaugh used his power as judge to attempt to effectively block a detained migrant 17-year-old girl from accessing an abortion that had been approved by another judge which she desperately wanted.

Criminalizing Abortion and More—Whether Roe Stands or Falls

Kavanaugh could provide the fifth vote needed on the Supreme Court to overturn Roe v. Wade. Seventeen states have laws restricting abortion access that would immediately go into effect, four of them banning all abortions altogether. Other states would quickly see an avalanche of anti-abortion laws introduced.

But Roe v. Wade does not have to be overturned for abortion and even birth control to be effectively eradicated. Already, five states have only one abortion clinic left. A web of hundreds of laws—mandatory waiting periods, parental notification requirements, costly renovations to clinics that have caused many to close down, medically counter-productive requirements for providers that are often impossible to comply with, and more—have already made it nearly impossible for millions of women to safely access abortion services in this country.

This floodgate of ever-growing restrictions followed the 1992 Supreme Court ruling Planned Parenthood v. Casey which ruled that those seeking to restrict abortion no longer needed to prove a “compelling government interest” in their restrictions. Rather, it now falls to those who oppose the abortion restrictions to prove that such restrictions cause an “undue burden” to women’s right to abortion.

And Kavanaugh’s interpretation of what constitutes an “undue burden” is even more ominously at odds with women’s lives. Just look at his recent dissent regarding the pregnant refugee mentioned above who was detained by ICE. Imagine the anxiety of this young woman—17, alone in a hostile country, in the clutches of a fascist government, her future completely uncertain. Under these conditions she made the highly rational decision to insist on her legal right to access to an abortion. Kavanaugh, siding with the government, thought that it was not an “undue burden” to force her to wait in prison to find a sponsor (a process with almost no chance of succeeding before her pregnancy advanced too late to be eligible for abortion) because she had the “choice” to instead be deported back to her country of origin (despite the facts that abortion was not legal there, that her parents abused her, and that conditions there were overall so intolerable that she was forced to flee in the first place). And his dissent was also marked by repeated sarcastic references to women’s right to abortion, and by insistence on the government’s “interests in favoring fetal life.” 

Only the People—NOT the Democrats—Can Stop a Fascist America

For decades, people who care about women, LGBTQ people, and the oppressed generally have been trained and brainwashed to think they have to rely on the Democratic Party. The more dangerous the situation, the more desperately they are told to cling to these Democrats. But this has not helped the people, rather it has demobilized people in the face of an increasingly relentless fascist assault.

Whereas the Republicans blocked a record number of Obama’s judicial appointments, most famously his appointment of Merrick Garland to the Supreme Court, the Democrats have worked with the Republicans to fast-track Trump’s fascist judicial appointments. Trump has now confirmed 24 appellate judges—more than any other first-term president—which includes flipping two federal circuit courts from majority liberal to majority fascist. Just last week, Chuck Schumer fast-tracked the approval of 15 of Trump’s judicial nominees. For years, the Democratic Party ceded the moral high ground to anti-abortion fanatics by insisting that abortion should be “rare,” as if there is something morally wrong with abortion—which there is not! Now, they bluster about how they will “ask tough questions” and funnel people’s attention, activity and money into the midterm elections, all while downplaying the reality that they neither have the votes—nor intention to wage any real fight—to stop the confirmation of Kavanaugh to the highest court in the land.

Why? Fundamentally, the Democrats are a ruling class party whose interests are in preserving the stability and functioning of the overall system of U.S. capitalism-imperialism. This means that, for all their profound and often very sharp differences with the fascist cabal now in power, they do not want to frontally challenge them either. As Bob Avakian has pointed out, the Democrats would prefer order, even if it is the order of fascism, rather than risk the kind of upheaval that would be required to win justice.

But, our interests are different! The danger that is now immediately looming over all women and girls, all LGBTQ people, and many, many others beyond that whose rights and lives are in the direct line of fire of what could soon be a fascist majority Supreme Court must not be accepted. We must step outside of politics as usual and put ourselves on the line to stop this appointment while raising the demand and getting organized to drive out the whole fascist Trump/Pence regime. As we do, growing numbers must dig into the nature of the capitalist-imperialist system that has given rise to this madness and to the revolution that is needed.