To Open The Sky

Nominated by D.J. Trump to fill the SCOTUS position vacated by Anthony Kennedy, Judge Kavanaugh is currently making the rounds on Capitol Hill and will soon face confirmation hearings. Here I present my reasons for feeling he should not ascend to that position.

1. Much like Neil Gorsuch, Judge Kavanaugh is biased in favor of employers. Thus is shown by his dissenting opinion in the case involving the tragic death of Dawn Brancheau, who was drowned at Sea World by an orca known to be dangerous. Sea World had been fined $7,000, and had appealed. The appellate court upheld the fine. Kavanaugh's dissent suggests a poor grasp of workplace safety law, which demands that the workplace must be free of recognized hazards. It is also reminiscent of Gorsuch's dissent in the "frozen trucker" case.
2. In dealing with a case under the Religious Freedom Restoration Act (RFRA), Judge Kavanaugh dissented on the basis that the RFRA permits employers whose religion prohibits a certain act (e.g. contraception) to forbid their employees' participation in health-insurance plans covering contraceptive services even when the employer does not pay a share of the cost of such services. This differs from the Hobby Lobby case, where the employer had no way to opt out of providing support. Had Kavanaugh's dissent carried the day, the Appeals Court would have had to grant the petition by "Priests for Life" for en banc rehearing of the case.
3. District of Columbia law has a long-standing provision that lets medical decisions be made for people adjudged incompetent to make the decisions for themselves without considering their wishes. When three women sued after the fact (one was given eye surgery; two were forced to undergo abortions they did not want), Judge Kavanaugh rejected their petition; reportedly, he " 'just rejected the notion that there was any reason at all' to ask the women in that case what they wanted."1
4. Judge Kavanaugh has an extensive history of comments critical of the Affordable Care Act (ACA) and has dissented in at least three cases involving it where his dissent reportedly would have weakened or undermined the ACA. This source also notes that "He also made the concerning statement that the president could decide not to enforce the ACA's individual mandate if the president concluded that it was unconstitutional, even if the courts had already ruled that it was constitutional."
5. Despite his fervent prosecution of Bill Clinton as an attorney in the Whitewater investigation, Judge Kavanaugh recommended in 2009 that Congress should consider making a sitting president immune to indictment or even investigation for alleged civil or criminal offenses because such would distract the president from the performance of important duties. There is room for disagreement on whether this is a problem for Kavanaugh, but I lean toward considering it one.
6. Another matter where Kavanaugh may arguably be blameless is his work preparing materials supporting the confirmations of two appeals court nominees. This arises because one, Charles W. Pickering, had some controversial opinions, and when Kavanaugh himself was up for an appeals court seat in 2006, he dodged a question about that by saying he was not "primarily responsible" for Pickering's nomination. This may be accurate; but released emails indicate substantial effort on Pickering's behalf and considerable interest in his success on Kavanaugh's part.
7. In his 12 years on the US Court of Appeals for the DC Circuit, Mother Jones reports, Judge Kavanaugh has ruled on 18 significant cases involving species protection. He decided against protection in 17 of them. In the 2011 case Otay Mesa Property v. US Department of the Interior, he basically second-guessed the Department's finding that the threatened species did exist on the 143-acre property in question. This does not bode well for the future of the Endangered Species Act.
8. Judge Kavanaugh once again sided with business in a case about net neutrality. The telecommunications industry had challenged Obama administration net neutrality rules. In 2017's United States Telecom Association v. Federal Communications Commission, the rules were upheld. Subsequently, an en banc rehearing was denied. Kavanaugh dissented from the denial, as he often has. On SCOTUSblog, Edith Roberts describes his reasoning as follows: "if Congress has not spoken on a matter of deep economic and political significance, which it had not in this instance, a regulation challenged under the relevant statute is presumed to be invalid."
9. In another pro-business opinion, Kavanaugh wrote in 2016 that employers can require workers to waive their right to picket in arbitration agreements. Regarding religion, in December 1999 he supported a Texas high school's use of its PA system for student-led prayers at football games. He has praised the late Chief Justice William Rehnquist's effort to tear down the wall between church and state that previous Supreme Courts had erected, predicted that the Court would one day approve school vouchers, and hinted that he might support strengthening the flow of public money to religious schools.
10. Senate Republicans in charge of Kavanaugh's confirmation process, Mitch McConnell and Chuck Grassley, are blocking access to documents from Kavanaugh's time as White House staff secretary to George W. Bush, a job Kavanaugh has described as "most interesting and informative for me" as preparation for his judicial work. Because Kavanaugh's time there coincides with the Bush administration's effort to place restrictions on women's reproductive rights, the documents may shed light on how he might rule in cases involving those rights, and specifically Roe v. Wade. The Republicans' refusal to grant access is unprecedented and raises concerns that partisan interests are behind it, as they were when Merrick Garland was denied a hearing for the SCOTUS position last year.
11. A man named Bill Burck, a Republican lawyer whose clients include George W. Bush, was given the task of reviewing the documents from Judge Kavanaugh's years of service in the White House during the Bush administration. He organized a staff of 50 reviewers in order to get the documents reviewed faster than the National Archives and Records Administration, which would have taken until the end of October to finish the job. The night before the confirmation hearing began, Burck released some 42,000 pages of documents to the Judiciary Committee. Democrats on the Committee are quite reasonably asking that the hearing should be suspended until they can examine those documents. Senator Grassley, chair of the Committee, refuses.
12. Although these documents are deemed "committee confidential," a few of them have been released by Democratic Senators on the Judiciary Committee. The released documents bear on several aspects of Judge Kavanaugh's career, including the question of his testimony regarding Charles Pickering that I mention in my point #6. It does appear he was more deeply involved with helping Pickering's confirmation than he implied.
13. A 2004 report names two Republican staffers, Jason Lundell and Manuel C. Miranda as having stolen, over 18 months, numerous files relating to the vetting of Republican candidates for judgeships from Democratic members of Congress. In his testimony this month, Judge Kavanaugh said he never received any of these documents. But an email revealed by Sen. Patrick Leahy appears to show that he did receive 8 pages of material from Sen. Leahy's office. If true, this would open Kavanaugh to a charge of perjury.
14. Judge Kavanaugh's testimony includes other instances of possible perjury. A criminal complaint on this basis has been filed by Scott Dworkin and the Democratic Coalition.
15. For some reason, Judge Kavanaugh was obsessed with proving Vince Foster was murdered. He spent a great deal of money on his effort, and apparently relied chiefly on right-wing conspiracy theorists for evidence.
16. Three contentious cases in Florida decided just before or during the George W. Bush administration — the battles over the 2000 presidential election, returning Elian Gonzales to Cuba, and allowing Terry Schiavo to die — cast doubt on Judge Kavanaugh's impartiality. His opposition to returning the six-year-old Gonzales also casts doubt on his expertise, because he should have known there was a widespread legal consensus that the child's father in Cuba would prevail.
17. The years between 1890 and 1937 are known to legal scholars as the Lochner Era, and they correspond roughly to what most call the era of the robber barons: a time when wealthy business owners like Andrew W. Mellon were free to do pretty much whatever they wanted. The legal term derives from Lochner v. New York, which struck down a state law barring bakery employees from being required to work more than 60 hours per week. Franklin Roosevelt's New Deal policies reversed this trend, and Congress was empowered to delegate the details of regulations to agencies such as the now-defunct Interstate Commerce Commission. Were Congress required to decide these innumerable details, its operation would bog down. Judge Kavanaugh's decisions during his service on the US Court of Appeals for the DC Circuit show a tendency to reject this sort of delegation. As an example, he argued that Congress had not specifically delegated to the EPA the authority to regulate CO₂ emissions, and that the Clean Power Plan was therefore invalid. A long-term project of The Federalist Society is to restore the non-delegation doctrine, and Kavanaugh maintained a close association with the Society even as a judge on the Court of Appeals.
18. Richard L. Hasen points out in Slate and in the Election Law Blog (see link in Slate article) that Judge Kavanaugh was the author of Bluman v. FEC, which forbids foreign money in U.S. elections. However, this ban only applies to money spent on "express advocacy" (such as "Vote for Obama" or "Don't vote for Trump".) Spending on "issue advocacy" (e.g. "Defeat Obamacare") would be perfectly legal. In addition, Kavanaugh has repeatedly stated the view that restrictions on the amount of money spent by individuals in campaigns are unconstitutional.
19. (January 2019) Kavanaugh's dissent in Heller v. District of Columbia maintains that neither of the District's subsequent gun regulations is constitutional: Its ban on semi-automatic rifles because it permitted semi-automatic handguns, and its registration of all privately owned guns because registration is not a "traditional" form of regulation. In my opinion, equating "non-traditional" with unconstitutional risks setting a dangerous precedent. Is genetic matching a traditional means of search? President Lyndon Johnson called for national gun registration in the Gun Control Act of 1968, but the Judiciary Committee refused to add it. New York State in 1911 passed the Sullivan Act requiring licensing (and thus registration) of guns owned by Irish and Italian immigrants. In 1934, President Franklin Roosevelt pushed for the registration of fully automatic rifles and certain other firearms, and this became part of the National Firearms Act of 1934. Thus, firearms registration has a considerable history in the United States. Considering it non-traditional seems a stretch.

REFERENCES

1. Brett Kavanaugh Has His Own "Frozen Trucker" Case (Terri Gerstein, Slate, 7 August 2018)
2. Priests for Life, et al., Appellants (No. 13-5368) (52-page PDF)
3. Brett Kavanaugh's disturbing abortion history: He ruled against women who were forced to abort (Amanda Marcotte, Salon, 20 August 2018)
4. REVIEW OF DISABILITY-RELATED CASES INVOLVING JUDGE BRETT KAVANAUGH (Bazelon Center for Mental Health Law: 9-page PDF)
5. Trump's Supreme Court pick said presidents shouldn't be investigated, Schumer said (Amy Sherman, Politico, 10 July 2018)
6. Democrats Question Kavanaugh's Testimony About Bush Nominee (Charlie Savage, New York Times, 16 August 2018)
7. Brett Kavanaugh Has a Nearly Perfect Record of Speeding Up Extinction (Emily Gertz, Mother Jones, 27 August 2018)
8. Potential nominee profile: Brett Kavanaugh (Edith Roberts, SCOTUSblog, 28 June 2018)
9. Brett Kavanaugh's track record (Politico, 9 July 2018)
10. Why Are Republicans Covering Up Brett Kavanaugh's Past? (New York Times editorial board, 17 August 2018)
11. 'Who Is Bill Burck?' Not the Only Big Law Attorney Reviewing Kavanaugh Documents (C. Ryan Barbar, National Law Journal, 4 September 2018)
12. Leaked Kavanaugh Documents Discuss Abortion and Affirmative Action (Charlie Savage, New York Times, 6 September 2018)
13. 'Kavanaugh Committed Perjury': New Documents Appear to Show Trump Supreme Court Pick Lied Under Oath Multiple Times
14. This is why we just filed a criminal complaint against Brett Kavanaugh (Grant Stern, The Dworkin Report, 7 September 2018)
15. Why Was Kavanaugh Obsessed With Vince Foster? (Sean Wilentz, New York Times, 5 September 2018)
16. Brett Kavanaugh Florida ties: Elian, 2000 vote recount, Terri Schiavo (Antonio Fin, Palm Beach Post, 10 July 2018)
17. How Supreme Court Pick Brett Kavanaugh Could Return US Policy to the Era of Robber Barons (by Sharon Kelly, DeSmogBlog, 5 September 2018)
18. Brett Kavanaugh May Soon Unshackle All Rich Political Donors (Richard L. Hasen, Slate, 3 September 2018)
19. United States Court of Appeals for the District of Columbia Circuit, No. 10-7036 (97-page PDF)

For more documentation of Judge Kavanaugh's work history, see: Nominee Brett Kavanaugh at Fix the Court, SCOTUS Shortlister Brett Kavanaugh on Obamacare and Judicial Restraint (Damon Root, Reason, 7 July 2018), Who Is Brett Kavanaugh (Ann E. Marimow, Washington Post, 9 July 2018), and Stop Brett Kavanaugh Fact Sheet: Money in Politics (People for the American Way).