July 12, 2018

On Monday, President Trump announced his nomination of Brett Kavanaugh to the US Supreme Court. If confirmed, Kavanaugh will replace retiring Justice Anthony Kennedy.

In a nutshell, here are our major concerns with Kavanaugh’s nomination:

• Presidential immunity. Judge Kavanaugh has written to Congress stating that presidents should neither be investigated, nor criminally indicted for wrongdoings committed.
• Sacrificing liberty for the false promise of security. Kavanaugh has used the guise of national security to bypass privacy concerns and ruled in favor of broadly targeting and criminalizing entire populations.
• Civil and human rights. From opposing common-sense gun reform, to restricting women’s rights and those of minority communities, Kavanaugh has taken a troubling stance on civil and human rights.
• Environmental degradation. Kavanaugh has repeatedly ruled against protections for clean water and air and in favor of corporate interests.

Retiring Justice Anthony Kennedy was not quite the moderate many remember him to be. At least Justice Kennedy could be expected to think critically through each individual case that found its way to our nation's highest court. With no such assurances about Trump's new pick, the US Senate must proceed with extreme caution throughout the confirmation process.

We have written before about how the decline of our democratic institutions hurts marginalized communities the hardest. One of the most worrisome indicators that we are indeed in decline is President Trump's repeated insistence that he is above the law and "can't obstruct justice." It can't be a coincidence, then, that he has nominated someone who is on the record as agreeing with that Orwellian premise. In addition to saying presidents should not be investigated, either in civil or criminal cases, Kavanaugh also wrote in the past that Congress should give the President "the full power to act when he believes that a particular independent counsel is 'out to get him.'" Sound like a familiar situation?

Even more disturbing about Kavanaugh's views is that he has argued for a broad expansion of the President's authority specifically when it comes to "the global war on terror." The American Muslim community, like so many others, has seen firsthand what happens when a President uses the guise of national security to enact sweeping policies that target and criminalize entire populations. In the past, Kavanaugh has brushed aside privacy concerns about such programs by stating “critical national security needs outweigh the impact on privacy occasioned by this program."

That Trump is nominating a judge who explicitly believes the President should be immune from checks and balances when the "war on terror" invoked is a major red flag. Senators must press Kavanaugh pointedly on this issue. Does he believe the original version of the Muslim Ban, based explicitly on a promise of shutting down Muslims entering the country, was constitutional on national security grounds? If Trump decides to follow through with another of his grand ideas, a Muslim registry for example, would Kavanaugh similarly dismiss challenges to such an action in the name of national security?

There is a whole range of other issues and precedents in danger of disruption should Kavanaugh be confirmed. From rolling back key environmental protection laws, opposing common-sense gun reform, to restricting women’s rights, and those of minority communities, Kennedy’s departure, and Kavanaugh’s arrival could reshape our nation’s laws -and how they’re carried out- for years to come.

With a razor-thin Republican majority in the Senate, there is a real chance that Kavanaugh’s confirmation could be held up past the 2018 midterm elections, which may bring a dramatic shifting of political power in the chamber. Any Senator who cares deeply about protecting our democratic institutions, defending the rights of all Americans, and refusing to sacrifice liberty for the false promise of security, must press Kavanaugh on his positions and, if he fails to offer any assurances that he won’t follow his own track record, vigorously oppose his nomination.

This past month we’ve seen the Supreme Court decide in favor of both excusing discrimination on the basis of religious beliefs and upholding a ban on travelers that was explicitly created to ban Muslims from entering the United States. With Justice Kennedy’s departure and Kavanaugh’s nomination, the danger of such destructive decisions becoming the norm and increasingly tyrannical actions from our White House going unchecked is far too great to stay on the sidelines.

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