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'The Stakes Are Astronomical': Brett Kavanaugh Supreme Court Hearing Will Be a Battle Royale
Written by <a href="index.php?option=com_comprofiler&task=userProfile&user=739"><span class="small">David Smith, Guardian UK</span></a>   
Monday, 03 September 2018 08:37

Smith writes: "Democrats know Donald Trump's greatest legacy may be the confirmation of a second conservative justice. Their fight to stop it starts now."

Mitch McConnell, Brett Kavanaugh and Mike Pence. (photo: Chip Somodevilla/Getty Images)
Mitch McConnell, Brett Kavanaugh and Mike Pence. (photo: Chip Somodevilla/Getty Images)


ALSO SEE: Democrats Slam White House for Withholding
Documents on Supreme Court Nominee

'The Stakes Are Astronomical': Brett Kavanaugh Supreme Court Hearing Will Be a Battle Royale

By David Smith, Guardian UK

03 September 18


Democrats know Donald Trump’s greatest legacy may be the confirmation of a second conservative justice. Their fight to stop it starts now

s he the unassuming family man who talks baseball over a beer, champions working women and directs traffic at the Fourth of July parade? Or the extreme ideologue whose ascent will strike a hammer blow to women, tilt America to the right for a generation and shore up the re-election of Donald Trump?

The opposing portraits of Brett Kavanaugh the man and Brett Kavanaugh the jurist will collide on Tuesday when the Senate considers him for the supreme court. The confirmation hearing, a critical test of temperament, may illuminate whether he is ultimately driven by the law or by ideology.

Either way, the seat is Kavanaugh’s to lose. Liberal activists have found it hard to sustain the fury that followed his nomination by Trump after swing vote Anthony Kennedy’s retirement in June. The hearing on Capitol Hill represents Democrats’ last best chance to thwart him.

“The only hope the country has is that Democrats will treat Kavanaugh like a hostile witness on the witness stand under cross-examination, throw him off script and break him down,” said Francis Boyle, a law professor at the University of Illinois.

“You do not need a gentleman or gentlewoman to deal with Kavanaugh. You need a district attorney. Some Democrats are going to have to go for the jugular.”

But Kavanaugh, 53, is no Daniel in the lions’ den. He is the ultimate Washington insider, steeped in the city’s political and legal establishments. His father spent more than two decades in the city as a lobbyist for the cosmetics industry. His mother was a high school teacher and a Maryland judge.

An only child, Kavanaugh went to all-male Catholic schools, studied at Yale University and Yale Law School, clerked for Kennedy in 1993-94 and was an associate counsel for independent counsel Kenneth Starr. In 1998, two days before President Bill Clinton testified to a grand jury from the White House, Kavanaugh posed 10 suggested questions about the affair with Monica Lewinsky, many of them sexually explicit.

He was a member of Lawyers for Bush-Cheney during the 2000 election and took part in the Florida recount that gave George W Bush victory over Al Gore. Kavanaugh served as a White House counsel to Bush and then staff secretary until 2006, when – his nomination having been held up by Democrats for three years – he was appointed to the US court of appeals for the DC circuit. Once he became a judge, he decided to stop voting.

He offered an insight into his judicial philosophy during a speech at Catholic University’s law school in 2015. He likened being a judge to being a good umpire, able to walk in others’ shoes and understand them while keeping emotions in check.

“On the bench, to put it in the vernacular, don’t be a jerk,” he said, also advising: “Check those political allegiances at the door when you become a judge.”

Kavanaugh’s supporters have been quick to point out that he hired more female than male clerks. Sarah Pitlyk, who became a mother shortly before clerking for Kavanaugh in 2010-11, recently told an audience at the Heritage Foundation how he called her before the job started.

“He just put it out there and said, ‘You’re a mom coming to clerk, I haven’t done this before, you haven’t done this before, let’s figure out what we need to do to make the clerkship just as rewarding for you as it would be otherwise but also to make it possible for you to be a mother while you’re doing it.’”

She added: “He asked for my ideas about how do to that. He didn’t tell me what would work for me, he didn’t prescribe the best solution based on his infinite wisdom or what he’d seen in other contexts … We made the accommodations that I needed to see my son every day and also be clerk for Judge Kavanaugh.”

The judge lives with his wife of 14 years, Ashley Estes Kavanaugh, and daughters Margaret and Elizabeth in a $1.2m home in Chevy Chase, an affluent, predominantly white town north of Washington. (According to the New York Times, he makes $220,600 as a federal judge while she earns about $60,000 as town manager).

Kavanaugh is seen out walking his dog, Murphy, or shovelling snow. He has coached girls basketball teams and serves as a lector and usher at Blessed Sacrament Church. Greg Chernack, a Democrat, lawyer and chairman of the town council, said: “He is very unassuming. He’s very down to earth and easy to talk to. He’s just another one of the neighbours. He usually plays traffic cop on 4 July when we have a parade.”

Kavanaugh is a fan of Bruce Springsteen and the Washington Nationals baseball team, Chernack added. “I sense he’s a big reader and right upfront in knowing legal literature. There are many things I disagree with him on but he’s an extremely impressive jurist and the type of judge you want a Republican president to nominate.”

Others who have met him also sing his praises. Curt Levey, president of the conservative activist group the Committee for Justice, said: “He’s intellectually curious. He loves to get into the details of the law and that’s why he loves being a judge. He’s the perfect person for it.”

There has also been support from unexpected quarters. Lisa Blatt, a self-declared liberal Democrat and feminist who has argued 35 cases before the supreme court, more than any other woman, wrote in Politico earlier this month: “Sometimes a superstar is just a superstar. That is the case with Judge Brett Kavanaugh … he will do the job with dignity, intelligence, empathy and integrity.”

Kavanaugh seems likely to have the full support of the Senate’s Republican majority including Susan Collins of Maine and Lisa Murkowski of Alaska, having apparently assuaged their concerns over the landmark abortion rights ruling Roe v Wade. Levey said: “It’s one thing to say it was wrongly decided. It’s another to say, after nearly 50 years, ‘I’m going to go out there and overturn it.’

“I never got the sense it’s at the top of his list of the most important issues in the world. The reason there’s no real doubt Collins and Murkowski are going to vote for him is they know that. He might be conservative but he’s not on an ideological mission to ban all abortions.”

Progressive activists, however, remain convinced that is precisely his mission. A multi-million dollar advertising and lobbying campaign is in full swing. The groups Women’s March and Center for Popular Democracy Action are planning a day of action in Washington on Tuesday.

Boyle, an international law expert who serves as counsel to Bosnia and Herzegovina and the provisional government of the Palestinian Authority, shares these concerns.

“I think Kavanaugh was put on there to ensure Roe is overturned,” he said. “He has used the Roberts dodge of saying it is settled law. So what? The supreme court can unsettle it tomorrow. He did not say it was decided correctly.”

Critics note that Trump has relied heavily on the rightwing Heritage Foundation and Federalist Society to develop his shortlist for supreme court nominations. Boyle said: “Kavanaugh is an extreme ideologue and a legal hatchet man for the Federalist Society. He was their spear carrier for years. He is being put on there by Trump to do their business and make the court as far right as he can under the circumstances. It’s going to be bad for a lot of people: for gays, for African Americans, for labour, for women.”

‘He’s been battle-tested’

Trump’s nominations of solid conservatives Neil Gorsuch and Kavanaugh to the supreme court are the glue holding his Republican coalition together, delighting evangelicals and persuading at least some moderates to overlook the president’s multiple shortcomings.

Come Tuesday, Democrats are like to press Kavanaugh on Roe v Wade and LGBT rights, his scepticism about affirmative action, whether he misled senators at his 2006 confirmation hearings about national security issues in the Bush White House, and his attitude to whether a sitting president should be protected from litigation and criminal investigations. The decision by the Trump administration to withhold 100,000 documents relating to Kavanaugh’s White House service will also hang over the hearing.

Senators with courtroom backgrounds such as Richard Blumenthal of Connecticut and Kamala Harris of California are likely to probe hard. But John Malcolm, vice-president of the Institute for Constitutional Government at the Heritage Foundation, said: “Judge Kavanaugh has been through two confirmation hearings and he’s been battle tested. If he can serve in the positions he’s served in in the Bush White House, my guess is he’ll have no trouble at his confirmation hearing.”

Neal Katyal, an acting solicitor general in the Obama administration, predicted that the spotlight will be more on the nominee’s conservatism than his character.

“Judge Kavanaugh is one of the most respected judges currently serving,” he said. “At the same time, he’s also conservative, and quite a bit more conservative than the justice he has been nominated to replace.”

Kavanaugh’s significance is likely to endure long after the latest outlandish speech or tweet from the president has been forgotten. Katyal, a law professor at Georgetown University in Washington, added: “The stakes are astronomical – this nomination, if successful, will dramatically alter the composition of the US supreme court, and very well may be President Trump’s most lasting legacy.”


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+11 # James Klimaski 2018-09-03 10:10
Reading his opinions the word "zealot" keeps popping up. I do not see any growth or change in the years he has spent on the bench.
 
 
+7 # BetaTheta 2018-09-03 10:39
Our history is rife with nice guys who perpetrated and abetted great evil in the name of "higher ideals." Ronald Reagan comes immediately to mind.

Our present crop of corporatist judges uses the ideals of free speech and the protections of the 14th amendment to ride roughshod over the rights of ordinary people. Kavanaugh would doubtless be no different.
 
 
+8 # Jim Rocket 2018-09-03 10:43
I guess we have to understand that "conservative" to these people means conserving aristocracy from the ravages of democracy.
 
 
+6 # Benign Observer 2018-09-03 10:52
If by 'battle royale' you mean a lot of histrionics that amount to exactly NO RESISTANCE whatsoever.

Dick Durbin capitulated the day Kavanaugh was announced and Chuck Schumer has already told his caucus he won't punish them if they vote for Kavanaugh -- and he just helped McConnell fast track 15 of Trump's federal judges so they could go on recess. Nice priorities, Chuck!

There are a number of ways to slow down this process, and several points to outright fight it -- but what we are going to see instead are a bunch of corporate Democrats turn red and sputter -- right until they vote to confirm.

So spare me. I can see a movie if I want inauthentic entertainment. When I see it from the too-ugly-for-Ho llywood crowd it only makes me angry.

This is not governance. This is bad theater.
 
 
+2 # RLF 2018-09-05 08:49
Schumer is Republican light. He's got no balls. If the republicans don't follow the rules, Kavanough should be impeached the minute the left has both the Senate and presidency. The Republicans have taken the gloves off...I don't see any Democratic leadership that will do shit about it. They're still chanting "Can't we all just get along?" and showing their bellys.
 
 
+12 # rofo47 2018-09-03 10:53
I don't care who or what Kavanaugh is. After what the GOP did to the rightful appointment President Obama had and this buffoon we have in office, no nominee by Trump should be confirmed or even considered until Mueller makes his report public. We all know these delusional Republicans don't care at all about the country, its people or being fair. So, I guess we have to suck it up and realize the country is getting what it deserves for staying home on election day, voting for Trump because you didn't like Hillary and just plain being uninformed.
 
 
+2 # Rodion Raskolnikov 2018-09-04 11:36
roof -- Two wrongs don't make a right. Still I agree with you that what Mitch McConnell and the republicans did to Obama's appointment was unforgiveably wrong. I wonder what constructive recourse there might be. I don't know if Kavanaugh will be confirmed or not. If Demos can block him, then what? There will be another just as bad. Do you block until 2020 when there is no more Trump?
 
 
+2 # RLF 2018-09-05 08:51
Yes. There should be a pledge for Dems right now. Block All Republican Judge Appointments. None. Never again...by any means. Time to reward the Reps. for their tossing the constitution under the bus.
 
 
+2 # Rodion Raskolnikov 2018-09-04 11:40
I don't think the stakes are "astronomical." The lame-stream media is now caught it its own hyperbolic maelstrom. Every day things get more and more "astronomical." It is getting down right Plutonian or whatever the farthest away heavenly body is.

And why it the Guardian -- a foreign news organ -- even commenting on this. If RT or some Russian paper were to write the above, the WashPost and the rest would be howling about meddling in US supreme court. The Guardian should have plenty to write about in its own back yard.

Kavanaugh is replacing the right wing Kennedy. Issues are now different from when Kennedy was nominated so a direct comparison is not very productive. Kavanaugh is certainly a little more to the right. But in general terms, they are about the same. Still, I would much rather have a liberal judge. But that will have to wait until Trump is gone.
 
 
+7 # chapdrum 2018-09-03 11:40
Democratic pols (Franken aside) let Sessions get away with perjury. I hope that they will find a way to unite against this obvious threat to anyone who is foolish enough not to be a billionaire.
 
 
+3 # LionMousePudding 2018-09-03 21:00
Any .. I will use a right wing insult which here is accurate... any Dimocrat who votes for Kavanaugh must be pilloried, primaried, and pulverized in their next election. That means we REMEMBER their vote like the right remembers Benghazi. Over and over and over.

I do not see why Democrats should even attend any deliberation where material about the candidate is being deliberately kept a secret by the administration* nominating him. Don't just "demand" it be made available, Democrats. We know that Dimocrat "demands" have nothing to back them up. They make Republicans snicker.

I, as many, have very little hope here. I think, because OUR side has a very large contingent of sniveling, dishonest corporatists, we have no damn hope.

All we can do is help to ensure that more Americans have the right to vote (are not caged, etc); want to vote (going door to door talking to people); and are able to vote (make polling stations available; give them rides.)
 
 
+4 # Salus Populi 2018-09-03 22:21
It would be nice if Anonymous would hack the 100,000 withheld documents, and released the most crimnal of them, during the hearings. This would no doubt not stop the confirmation, but at least give the public a taste of what is to come. As Thomas shows every day, once a just-us is confirmed, they have no reason at all to abide by the law, to recuse themselves for conflict of interest, to avoid _ex parte_ associations with other fascists, and so forth. We as activists should at least take this to heart as a lesson that needs to be emphasized and repeated until it becomes an automatic part of our lives: We cannot depend on a Warren-style Court, a Democratic/even a Progressive Congress, or an eloquent and rhetorically friendly politician to secure our rights, our liberties, and our lives. As FDR said to the union honchos who were lobbying him for fair treatment, [paraphrase] "Now get out there and make me do it." It is street heat and nothing else that gets the plutocrats' attention. If their corporately run, billionaires' brothel cannot function due to restless mobs' threatening and carrying through the threat to shut down the country, one city after another, then both the neo-con, neo-lib greedheads and warmongers, and the Trumpian White Supremacists, can be stopped in their tracks. Short of that, you can kiss goodbye the "America that was once free and is now dead," as the late Walter Karp entitled one of his essays.
 
 
+1 # Benign Observer 2018-09-04 11:33
Orrin Hatch -- "This has been the most thorough confirmation process in Senate history." That guy has not one qualm about lying for any reason any time any place. Absolutely shameless.

Loving the protestors though. But not loving Patrick Leahy sniffing at 'interrupters'. Respect is earned, Senator -- and none of you have earned it.

Does anyone think the GOP would be satisfied to whine for the cameras? No, they'd be fighting this tooth and nail every step of the way and they'd find a way to win.

So sick of Democrats. How many lives is Kavanaugh going to ruin -- and the Dems won't even fight. They didn't fight Gorsuch. They didn't fight for Garland.

What a rotten, corrupt, spineless party. They don't deserve our support or our respect. We have no one to represent our interests.
 
 
+1 # RLF 2018-09-05 08:56
When our government no longer serves or obeys the people it governs and every avenue of change has been taken away...there is only one path left. Civil War!