Brett M. Kavanaugh (screenshot via YouTube)
Now that Trump has nominated Brett Kavanaugh to the Supreme Court, here come the allegedly left of center think pieces about his “sterling credentials” and “seriousness.” Next comes the whimsical wish to return to the days of nominees being confirmed near unanimously based on their résumé and not on their jurisprudence.
I am DONE with elitists spouting the line that Kavanaugh nomination should be unquestioningly supported. It’s as if somehow the eliteness of his pedigree should properly insulate him from a thorough confirmation process. It’s not hard to oppose Kavanaugh if you care about what he will do on the Court, rather than just look at the boxes his academic excellence and privilege have allowed him to check off. Watching elites stand up for their elite buddies with total disregard for how real people are going to be impacted is just too damn much.
All the talk about Kavanaugh’s impeccable qualifications is a way to gaslight you into acquiescing to the proprietary of him as a Justice. If Trump’s nominee is a “proper” choice, then opposing him is outside the mainstream, something only a radical would do. But I won’t be gaslighted into believing my rights are safe in the hands of a Supreme Court that includes Brett Kavanaugh.
Kavanaugh is to the right, ideologically, of everyone currently on the Court, save Clarence Thomas. With him on the bench, the Court’s Overton window shifts to the right and opens up more extreme positions for petitioners to take. I shudder to think what that means for the Court’s jurisprudence. Hell, with the admittedly more moderate Anthony Kennedy on the Court, in this Term alone they hacked away at unions, voting rights, gay rights, and reproductive choice. How much more can we take before core rights are relegated to the dust bin of history?
People who don’t believe their rights are in danger (either because of a foolish belief in the myth of John Roberts’s centrism or because they’re straight white cis males whose rights are literally never threatened) will try to tell you and your righteous anger to be quiet. That there’s something uncouth about fighting for your rights that are clearly being threatened. There isn’t. If you care about reproductive freedom know that right is under attack — right now, with this nomination. Ditto for gay rights, voting rights, and civil rights writ large.
And here’s the thing — and it’s something the GOP knows all too well, just ask Merrick Garland — the Supreme Court IS already a political body. Opposing Kavanaugh’s nomination despite his Yale Law degree doesn’t make that more so. Certain power brokers would prefer the average person consider the Court somehow above the fray, and the president has a right to smooth sailing for his nominee. But that is revisionist and a deliberate kind of forgetting that only benefits elites.
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In Bush v. Gore, the justices of the Supreme Court showed their true political stripes. And there was always going to be a difficult decision in that case, but the majority wrote that their decision would have no precedential value moving it outside of “case or controversy” land and into plain partisanism. I mean, creating precedent is what the Supreme Court is supposed to do! Instead, the five Republican justices decided the Republican should be president and divorced that decision from the branch’s core mission. So of course picking the next person to sit on the Court is political.
Last night, Elizabeth Warren called Kavanaugh a “political animal” for all his efforts on behalf of mainstream Republicans through the years. He’s worked with Ken Starr and the George W. Bush White House, twisting his thoughts on executive immunity depending on which party controls the office. When Bill Clinton was the president, of course he could face subpoenas and possible indictments, and after Bush took the office, Kavanaugh changed his tune. He knows the game and will play it on First Street.
Just remember that for all the high-minded talk in defense of Kavanaugh, this is just about getting another one of their own (elites) onto the Court, the consequences for those they perceive as lesser than them be damned.
Kathryn Rubino is a Senior Editor at Above the Law. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).