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Report Finds Judge Kavanaugh Ruled Against Public Interest in Almost All of His District Court Cases
Written by <a href="index.php?option=com_comprofiler&task=userProfile&user=2749"><span class="small">Democracy Now!</span></a>   
Thursday, 06 September 2018 08:24

Excerpt: "Even as records about Judge Brett Kavanaugh's time in the White House remain concealed, much can be learned from his judicial record."

US Supreme Court nominee judge Brett Kavanaugh is sworn in during a Senate Judiciary Committee confirmation. (photo: Reuters)
US Supreme Court nominee judge Brett Kavanaugh is sworn in during a Senate Judiciary Committee confirmation. (photo: Reuters)

Report Finds Judge Kavanaugh Ruled Against Public Interest in Almost All of His District Court Cases

By Democracy Now!

06 September 18


ven as records about Judge Brett Kavanaugh’s time in the White House remain concealed, much can be learned from his judicial record. We speak with Robert Weissman, president of Public Citizen, about their analysis of Judge Kavanaugh’s opinions in split-decision cases, which found that during his 12 years on the U.S. Court of Appeals for the D.C. Circuit, Kavanaugh decided or wrote an opinion against the public interest 87 percent of the time in split-decision cases dealing with consumer, environmental and worker rights.


This is a rush transcript. Copy may not be in its final form.

JUAN GONZÁLEZ: Well, I’d like to turn to our third guest. Robert Weissman is president of Public Citizen. Last week, Public Citizen issued, quote, “An Analysis of Judge Kavanaugh’s Opinions in Split-Decision Cases” and found that during his 12 years on the U.S. Court of Appeals for the D.C. Circuit, Judge Brett Kavanaugh decided or wrote an opinion against the public interest 87 percent of the time in split-decision cases dealing with consumer, environmental and worker rights.

Bob Weissman, welcome to Democracy Now! I wanted to ask you about some of those decisions. In labor cases, for instance, it’s a remarkable record. And these are obviously—you chose to concentrate on the actual public record, as the Republicans have been urging everyone to do, and you specifically dealt with those cases that the judge was a deciding vote in a three-judge panel decision.

ROBERT WEISSMAN: Right. So, Judge Kavanaugh sits on the appeals court. The appeals court hears cases with three judges or sometimes the full panel en banc. A lot of cases that come up really aren’t very close, or they’re decided 3 to 0, and they don’t tell you typically that much about what a judge thinks. But when the judges split, we know that there’s some difference of opinion. There’s actually a chance for the judges to go one way or the other. And in those—studying those cases, you can really figure out, over time, what a judge’s philosophy is.

And we looked at all of Judge Kavanaugh’s split-decision opinions. It’s more than a hundred of them. And the results were astounding, as you say. In the employment and worker rights area, he decided 15 times for employers and only two times for employees, both times in relatively obscure issues—so almost always for the employer. Same thing for the environment: 11 times for corporations or against entities suing to block environmental protection, only twice for the side of clean air and clean water. And the same thing for consumer: 18 to 4, almost always for business, very rarely for consumers or the public interest.

AMY GOODMAN: What about on issues of the environment, Rob?

ROBERT WEISSMAN: You know, he is hostile to the Environmental Protection Agency. So, there were a couple cases where he appears to side for the environment, but actually, when you look at them more carefully, not so much. But, overwhelmingly, 11 out of these 13 cases, he decided on behalf of polluters.

The cases that come before the appeals courts in the D.C. Circuit tend to have to do with the operations of federal agencies. And a key question is: How much do you give the benefit of the doubt to the agency when you’re examining whether or not what it did was legal? Judge Kavanaugh has an elaborate theory about that, which is interesting, but, in practice, it works like this. When corporations are suing, zero deference to the agency. In the case of the Environmental Protection Agency, he’s often hostile to the agency, mocks their decisions, and says what they do is completely irrelevant and unjustified. When an environmental group sues to say, “Hey, the agency wasn’t strong enough,” then he is very deferential, very generous and understanding of the agency’s expertise.

And we see that time and time again on a whole host of environmental issues, including the ultimate issue, which is whether or not the Environmental Protection Agency has the authority to regulate greenhouse gas pollution. And there’s real reason to assume that he thinks, under the Clean Air Act, the answer is no.

JUAN GONZÁLEZ: And in cases dealing with police abuse or human rights abuses, there were nine cases that were split decisions where he was the deciding vote, and in all nine cases he ruled against the victims and for the alleged abusers?

ROBERT WEISSMAN: That’s right. Well, seven out of seven. And again, these are cases that come frequently before the appeals court in D.C., so he has a bunch of these cases. In cases of police abuse—and these are civil cases, not criminal cases. In cases of police abuse, the question is: Was the police officer operating reasonably enough that they should be immune from being held liable? Every time, for Judge Kavanaugh, the answer was yes.

The human rights cases involve sometimes complicated legal issues, which are worth talking about. But at the end of the day, he always sides against the victim. And a couple of those cases had to do with a lawsuit you all have covered extensively, which had to do with ExxonMobil’s operation in Indonesia and villagers in Aceh suing for really horrible human rights abuses conducted by the Indonesian military on behalf of Exxon. Judge Kavanaugh ruled in two separate cases regarding that, first saying, “Look, if the government says—the U.S. government says there’s a foreign policy consideration here, case closed. We’re not even going to look at it.” Secondly, getting actually to the legal question presented by a different set of villagers about the same matter, he said they should have no right to sue in U.S. courts, first, because the abuses occurred overseas, but, secondly and crucially, he said that the relevant statute, which is known as the Alien Tort Statute, doesn’t apply to corporations, that you can sue human beings under the Alien Tort Statute, but you can’t sue corporations.

So, corporations, it turns out, aren’t always people. They’re not people for Judge Kavanaugh when they might be held liable. And if you look across his record, you see, time and time again, this theme that comes through: There is one standard that applies to corporations, and it is very favorable, and there’s a different standard that applies to human beings as they’re trying to get their rights recognized, either as consumers, workers, breathers of clean air or victims of human rights abuses.

AMY GOODMAN: Rob Weissman, what about the case that Public Citizen had before Judge Kavanaugh?

ROBERT WEISSMAN: Right. So, we were trying to bring a case challenging the auto safety agency for not adopting a strong enough standard, as it was required to do by Congress. And this case was decided on the legal question of standing, which is the legal term for whether or not we had a right to bring the case in the first instance. And what the courts say is, you have to—to establish this idea of standing, you have to show that you’re directly affected, that you’ve got a real stake in the argument. And we said, “Look, we’ve got more than 100,000 members. This inadequate rule from the auto safety agency is going to make it more likely that people are injured and killed. None of our members want it to be more likely that they’re injured or killed. And some number of them—we can’t say for sure, but some number of them are likely to be in auto accidents as a result of this inadequately protective rule.”

So, Judge Kavanaugh said, “Not good enough.” He said, “You can’t say there’s a chance that some—there’s a low chance that someone is going to be injured. You have to tell me the exact person who’s likely to be injured.” And he said, “It’s not good enough that you put together 100,000 or a million people and say some number of them are going to be injured. You have to show the identifiable person.” Well, of course, that’s an impossible standard to meet when there’s a risk of something happening in the future that’s a relatively low probability for any individual, but a near certainty for the whole population. Judge Kavanaugh said, “Too bad. You can’t bring a case in that circumstance. The remedy should be that the victim of the auto accident, that’s going to happen in the future, they sue the auto company afterwards”—after they’re injured, maimed or killed.

JUAN GONZÁLEZ: You’ve also raised—

ROBERT WEISSMAN: And that’s a doctrine that’s not just in—again, that was a big deal in that case. That actually mattered a lot. But even more important is this idea of standing, when consumer groups, citizen groups, environmentalists, workers, others can bring actions to challenge agencies for not doing the right thing. And Judge Kavanaugh’s answer is, it is extremely hard for groups like ours to bring lawsuits against those agencies. On the other hand, regulated business, corporations, they pretty much always have the right to bring a case, under Judge Kavanaugh’s reasoning, because they’re so, apparently, directly affected by the regulation.

JUAN GONZÁLEZ: And, Rob Weissman, briefly, you’ve raised concerns about how the judge might rule on net neutrality issues. Clearly, the Trump administration’s FCC has done away with net neutrality. There are states now passing their own net neutrality provisions. What is your perspective of his views on an issue like that?

ROBERT WEISSMAN: Right. Well, we don’t have to guess, because he did rule on net neutrality issues, and he has an unbelievably harsh and overreaching decision. He said that the FCC’s net neutrality rules—now, of course, since rescinded—were illegal and unconstitutional. So, what he said was—first of all, it was impressive to see how he characterized net neutrality in this matter. He said the net neutrality rules would wrest control of the internet from private parties and hand it over to the government. Of course, what net neutrality actually does is try to preserve the way the internet has always worked, so that private corporations don’t get the ability to censor it and to impose a lock control over it.

But what he said was, net neutrality couldn’t be legal because it was an interference in the First Amendment rights of the internet service providers, the ISPs, the cable companies and others, that they had a right to determine—he called it an editorial right—they had a right to determine what flows over the cable lines. But, of course, it is no editorial decision for Comcast whether or not it’s going to charge fees to Netflix, in any sense that any thinking human being has about it. It’s a business decision. But Brett Kavanaugh converted that into a First Amendment issue and said, “Therefore it’s unconstitutional for the government to proceed with net neutrality rules,” at least absent showing some special market control by the cable companies themselves.

AMY GOODMAN: Rob Weissman, we just have a minute. Very quickly, what would you ask Kavanaugh today? And do you think this is a done deal, as a number of the Democrats clearly say there’s no way they can stop it?

ROBERT WEISSMAN: Well, I think it’s important—Senator Whitehouse yesterday did an excellent job of really raising some of these questions about consumer, labor and worker rights. And the question really has to be: “Explain your double standard. You say you decide things for everybody, but when you look at the record, you almost always decide for corporations and against regular people, and your reasoning embodies a double standard.”

On the question of whether or not this is a done deal, the answer, of course, is no. It’s not done until it’s done. It’s not done until there’s a vote. You know, as your first guest was saying, there aren’t enough Democratic votes to block him, so the real question is going to be whether two Republicans can be forced to come over. I think the Democrats will be forced to stay strong, if there’s enough pressure brought to bear on the two Republicans to vote no.

AMY GOODMAN: We want to thank you for being with us, Robert Weissman, president of Public Citizen, also Heidi Sieck, co-founder of the national organization VoteProChoice, and Fred Guttenberg, father of Parkland shooting victim Jaime Guttenberg. He will be there today and through this week.

When we come back, Amazon hits $1 trillion in value. Its CEO, Jeff Bezos, is the richest man in the world. But what about the workers? Stay with us. your social media marketing partner


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+6 # ddd-rrr 2018-09-06 10:04
Thanks for this article -- although what is in it is not surprising, but expected
of this decidedly "right-wing" judge that we must oppose for
the future sake of our country and its people.
-4 # Rodion Raskolnikov 2018-09-06 10:35
Not surprising. Congress passes bills that are 87% of the time against the public interest. The last half dozen administrations have acted against public interest at least 87% of the time. The whole government has very little concern for public interest at all.

This is because the public and the public sphere is almost dead. People are complacent. They accept whatever the government and its propaganda bureaus in the mass media tells them.

For example. We are at the anniversary of 9-11. Most people know that 9-11 was a faked false flag operation staged in order to change the fundamental order of the US and world along the lines described in the PNAC manifesto written just before 9-11. That is, a militarized and force based world lead by a single super power. While people know this, they have done nothing and can do nothing to oppose it. They are powerless and the accept that.

Kavanaugh seems like a status quo nomination. If he fails, the same kind of person with be nominated in his stead. If a democrats ascends to the white house, he/she will appoint the same kind of person.

Change is desperately needed, but it has not started yet.
+1 # Salus Populi 2018-09-08 11:24
Agreed, but there are nuances.

Merrick Garland was well to the right of Stephen Breyer, Sonja Sotomayor, Ruth Baader Ginsburg, and Elena Kagan, not to mention the most right-wing Democratic appointee of the postwar period, Byron "Whizzer" White, the ex-football player appointed by Kennedy. Clinton vetted all his appointees, including both of the Supremes, past Orrin Hatch, the far-right Judicial Committee ranking Republican. Hence, Breyer had been the lead author, as Ted Kennedy's chief of staff, of the beginning of deregulation during the Carter administration, while Ginsberg was an admirer and frequent luncheon companion of Robert Bork. The two most liberal judges after the Warren Court was history, Stevens and Souter, were both accidental appointees by Ford and Bush the Elected, respectively.

None of the Justices appointed since the Eisenhower administration has been nearly as liberal as the Court of that time.

Still, looking at Thomas, Rehnquist, Scalia, O'Conner, Alito, Kennedy, and Roberts, it is clear that there is a large difference in degree of allegiance to the corporate-fasci st state, and in that sense, just like Gorsuch, Kavanaugh will help shift the Court even further to the realm of the rubber stamp. And Republicans, attentive to the long view, make sure that the lifetime appointments they make are uniformly relatively young, so that long after the admin has dustbinned, we'll still be stuck with their spawn.