The single most important issue in Judge Kavanaugh’s confirmation hearing

Ian Millhiser

Ian Millhiser Senior Constitutional Policy Analyst, Think Progress

Judge Brett Kavanaugh’s bid to join the Supreme Court enters its theatrical stage on Tuesday, when his confirmation hearing begins. Kavanaugh will spend his week being intermittently praised by Republican senators and dodging questions from Democratic senators.

It’s a process that, in Justice Elena Kagan’s words, lacks “seriousness and substance” and risks taking on “an air of vacuity and farce.” Supreme Court nominees have gotten very good at spending their confirmation hearings saying little to nothing of interest. Don’t expect Judge Kavanaugh’s to be any different.

In a break with past practice, Senate Republicans scheduled Kavanaugh’s hearing this week despite the fact that many documents from his time in the Bush White House are not yet available. Nevertheless, we know a great deal about how Kavanuagh is likely to behave if he is confirmed due to his public writings and his 12 years on the federal bench.

We know that Kavanaugh will almost certainly kill Roe v. Wade. There are currently four votes on the Supreme Court who consistently vote against abortion rights. Kavanuagh gave a speech in 2017 criticizing Roe and praising the dissent. And he sided with the Trump administration, at least temporarily, when the administration literally held women prisoner to prevent them from having an abortion.

We know that Kavanaugh will likely support the extraordinary deference to Donald Trump that the Supreme Court showed in Trump v. Hawaii, the Muslim ban case. As a lower court judge, according to the ACLU’s Jonathan Hafetz, “Kavanaugh has staked out positions that have broadly construed presidential war powers to detain or try terrorism suspects outside the regular federal criminal justice system and narrowly construed individuals’ constitutional rights.”

Perhaps most ominously of all, Kavanaugh wrote in a dissenting opinion in Seven-Sky v. Holder that “the President may decline to enforce a statute that regulates private individuals when the President deems the statute unconstitutional, even if a court has held or would hold the statute constitutional.” Seven-Sky held that the Affordable Care Act is constitutional.

Yet, despite his expansive view of the president’s power to take the sort of actions that Republican presidents will want to take, Kavanaugh also wants to roll back the power of Democratic administrations to protect the environment or improve working conditions. Kavanaugh was a frequent antagonist of President Obama’s Environmental Protection Agency. And he read the Labor Department’s power to ensure safe workplaces narrowly in a case involving a Sea World trainer killed by a killer whale.

We know that Kavanaugh is overwhelmingly likely to join an opinion holding that religious conservatives have a right to violate bans on anti-LGBTQ discrimination. Judge Kavanaugh sided with religious employers who oppose birth control in Priests for Life v. Department of Health and Human Services

And we know that Kavanuagh will likely join with his fellow Republicans on the Supreme Court who’ve weaponized the First Amendment to attack progressive policies that have only a tangential connection to free speech. Dissenting in United States Telecom Association v. FCC, Kavanaugh claimed that net neutrality violates the First Amendment.

But while all of these issues are important, they nevertheless pale in comparison to a single issue where Kavanaugh’s record is a little more vague — voting rights. What little we know of Kavanuagh’s views on the right to vote suggests that he is likely to vote with his fellow Republicans on this issue as well, and that could be catastrophic news for supporters of liberal democracy.

Right now, it is likely that there are four votes on the Supreme Court to gut what remains of the Voting Rights Act of 1965, the single most important piece of voting rights legislation in American history. If confirmed, Kavanaugh is likely to be the fifth.

Thanks to an amendment signed by President Ronald Reagan in 1982, the Voting Rights Act prohibits any voting restriction that “results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color.” Voting rights plaintiffs, in other words, do not need to prove that lawmakers acted with racist intent when they passed a particular voting law, they can just show that the law has a disproportionate effect on voters of color.

As a young Justice Department attorney, Chief Justice John Roberts was part of a conservative faction with in DOJ that urged Reagan not to sign this law. And Roberts made comments during a 2015 oral argument which indicate that he thinks the 1982 amendments to the Voting Rights Act are unconstitutional. Yet Roberts was unable to move forward with this agenda in the past, largely because retired Justice Anthony Kennedy did not object to civil rights laws banning state action that has a disparate effect on minorities.

Kennedy is now gone, and Kavanaugh is a much more doctrinaire conservative. The Voting Rights Act’s future looks grim.

If Roberts gets his way, voting rights plaintiffs will still theoretically be able to win their cases if they can show that a law was enacted with racist intent, but the Supreme Court’s recent decision in Abbott v. Perez held that lawmakers enjoy an extraordinarily strong presumption of racial innocence when they are accused of acting with such intent. As a practical matter, it is likely that cases alleging racial voter discrimination will soon be next-to-impossible to win.

It’s not hard to guess what America looks like once the Voting Rights Act is neutered. Earlier this month, for example, election officials in Georgia considered closing down 7 of the 9 polling places in a majority black county (though they rejected this proposal after it received widespread national criticism).

Without a functional Voting Rights Act, Republican states will be free to emulate this tactic, closing polling places in black neighborhoods and forcing African Americans to wait in long lines to vote — all while white voters can waltz in and out of the polls in minutes.

Without a functional Voting Rights Act, voter suppression laws like voter ID will proliferate. Racial gerrymanders will grow even more common. Laws like North Carolina’s omnibus voter suppression law, which was struck down by a federal appeals court in 2016 for directly targeting African-American voters, will become commonplace in red states. And Republican lawmakers will constantly be on the lookout for new and creative ways to make it harder for voters of color — demographic groups that tend to prefer Democrats over Republicans — to cast a ballot.

The greatest danger from the Kavanuagh nomination, in other words, is not that he will put conservative policies in place — that outcome is a given. It is that he will put those policies in place permanently, allowing Republican lawmakers to place such a firm thumb on the electoral scales that Democrats will never be able to return to power again.

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Reposted from Think Progress

Ian Millhiser is a Senior Constitutional Policy Analyst at the Center for American Progress Action Fund and the Editor of ThinkProgress Justice. He received a B.A. in Philosophy from Kenyon College and a J.D., magna cum laude, from Duke University. Ian clerked for Judge Eric L. Clay of the United States Court of Appeals for the Sixth Circuit, and has worked as an attorney with the National Senior Citizens Law Center’s Federal Rights Project, as Assistant Director for Communications with the American Constitution Society, and as a Teach For America teacher in the Mississippi Delta. His writings have appeared in a diversity of legal and mainstream publications, including the New York Times, The Los Angeles Times, U.S. News and World Report, Slate, the Guardian, the American Prospect, the Yale Law and Policy Review and the Duke Law Journal; and he has been a guest on CNN, MSNBC, Al Jazeera English, Fox News and many radio shows.

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