Kavanaugh nah. Hey, hey: goodbye

Bill Knight column for Mon., Tues. or Wed., July 30, 31 or Aug. 1, 2018

President Trump’s nomination to the U.S. Supreme Court is anti-labor, defers to executive authority, favors curtailing administrative agencies’ actions, advocates weakening 4^th Amendment protections against unreasonable searches and seizures, confuses international law and foreign statutes, and exploits free-speech arguments in various disputes (like the recent “Janus” ruling).

Nominated July 9, Brett Kavanuagh, 53, is unabashedly pro-business, reported the New York Times, which said his confirmation would “cement a solid pro-business majority on the nation’s highest court, advancing Mr. Trump’s aim of dismantling the regulatory state, liberating industry from what he sees as burdensome rules, with critical battles over the environment and consumer protection headed for the courts.”

AFL-CIO president Richard Trumka said Kavanaugh has “a dangerous track record protecting the privileges of the wealthy and powerful at the expense of working people.”

Indeed, Kavanugh’s dissent in the Appellate Court’s decision in the 2008 case “Agri Processor Co. Inc. v. NLRB” defied the law and the high court. The majority commented that the argument offered by the employer and Kavanaugh “ignores both the [National Labor Relations] Act’s plain language and binding Supreme Court precedent.”

In an example of his servile attitude toward the powerful, Kavanaugh is on the record as advocating for disgraced President Richard Nixon’ power over the public interest. In 1999, Kavanaugh wrote that the Supreme Court erred in its unanimous 1974 decision requiring Nixon to release the Watergate tapes because it limited the president’s power to withhold information – even if needed for a criminal prosecution.

Further, as Associated Press journalist Mary Claire Jalonick reported in the Chicago Tribune, Kavanaugh in 2009 wrote that U.S. “presidents should not have to face criminal investigations, including indictments, or civil lawsuits while they are in office. He said Congress should pass a law temporarily protecting presidents from such distractions.”

Alarmed civil liberties activists ranging from the ACLU to libertarian Republican Sen. Rand Paul of Kentucky also are concerned with Kavanaugh’s submissiveness to the state, exemplified in his endorsement of warrantless searches such as the National Security Agency’s 2015 mass collection of phone records, which he said “readily qualifies as reasonable.”

“He seems less inclined to scrutinize the claims of cops and spies who collect evidence without a warrant,” wrote Jacob Sullum in Reason magazine.

As for Kavanaugh’s failure to distinguish between international law and foreign law, it’s inexplicable, according to legal scholars – unless it’s yet another example of preferring powerful interests over democratically achieved measures.

Jordan Paust, professor emeritus at the University of Houston Law Center, commented to the Truthout news site, “The unanimous views of the Founders, Framers and Supreme Court Justice opinions is that the President and all members of the Executive Branch are bound by international law.”

International law refers to what’s called “customary international law” and treaties ratified by the Senate, and under the Constitution “shall be the supreme law of the land.” Foreign laws are statutes passed in other countries.

Paust in 2012 wrote in the Cornell International Law Journal that Kavanaugh “embraced and basically relied merely on a radical ahistorical and ultimately anti-constitutional minority viewpoint.”

In a 2014 article in the Notre Dame Law Review, Kavanaugh wrote that the take-care clause of the Constitution requires the president to enforce the law “at least unless the President deems the law unconstitutional, in which event the President can decline to follow the statute until a final court order says otherwise.”

Thomas Jefferson School of Law professor emerita Marjorie Cohn said, “Kavanaugh would create a dangerous presumption in favor of a president who refuses to follow the law.”

Lastly, before his nomination, Kavanaugh worked for George W. Bush’s campaign in the 2000 Florida recount fight that resulted in the Supreme Court naming Bush President; researched government’s emergency powers after 9-11, contributing to the USA PATRIOT Act; and worked as Associate Counsel in Ken Starr’s Office of the Independent Counsel’s investigation of President Bill Clinton (which also, interestingly, asserted that a President could be impeached for lying to staff or misleading the public, which might be trouble for Trump).