On the nose Brett Kavanaugh squeezed through as U.S. Supreme Court judge

The clearance by the United States Senate of Brett Kavanaugh as a Supreme Court judge has further shown up angry divisions in American society. 

More than airing partisan animosities, it has produced much investigatory work into the man and his work, and provoked thinking about the principles and purposes of the American Republic and the directions it has been following.

It came to a narrow margin on party lines, with one Republican and one Democrat dissenter on either side, 50-48.

President Donald Trump, on his way to a right-wing political rally in Kansas, crowed over the decision, forecasting Kavanaugh would be a “ brilliant jurist”.

Thousands of protestors assembled in Washington, especially women’s advocates livid over the treatment of Christine Blasey Ford, who’d accused him of attempted rape, and some got into the Senate galleries disrupting the vote.

The Senate Minority Leader Chuck Schumer, who led the Democratic Party’s opposition to the appointment and called it “unfair”, because of limitations imposed by the majority on the process and the constraints put on the FBI investigation into the accusations of sexual assault in the final stages.

“HARD RIGHT, CONSERVATIVE JURISPRUDENCE”

Schumer cited anxiety about the judicial record of Brett Kavanaugh, indicating that his lifetime appointment would bend the U.S. Supreme Court towards conservative and reactionary decisions.

He said it would be:

“... a hard-right, conservative jurisprudence, far, far away from what average Americans believe. He has cast around his judicial decisions a cloud so thick that the American people could not divine what he thinks.”

The sometimes nuanced and sometimes blunt legal thinking of Kavanaugh, since he joined the Washington DC Appeal Court in 2003  – confirmed there only after another drawn-out and bitter confirmation process – has had a definite direction, as analysed by the Washington Post which gave him the most or second-most conservative voting record during his 15 years on that court.

Here is a summary of an analysis of that record made by the respected Politico news service, showing how a judge’s legal thinking can reflect his personal stance and affect other people’s daily life — and liberty:

• Abortion and birth control 

A dissenting vote with impact against obtaining contraception under the “Obamacare” public health scheme; also he dissented from a decision that permitted an undocumented immigrant teenager to have an abortion.

• Digital privacy

He joined other judges in rejecting a challenge to the National Security Agency's warrantless collection of phone “metadata”, writing that a 'critical national security need outweighs the impact on privacy occasioned by this program'.

And, in a case over whether authorities needed a warrant to place a GPS tracker on a suspect’s car, he made an influential independent contribution in favour of requiring warrants, saying the Government might have violated the suspect's property rights by tampering with his vehicle.

• Workers’ rights 

Kavanaugh wrote a 2016 opinion saying employers can require workers to waive their right to picket in arbitration agreements.

• Immigration 

He opposed granting special visas for Brazilian workers when American workers could also do the same job, and argued that a union election was void because undocumented immigrants had voted in it and "tainted" the result.

• Separation of church and state

He has indicated sympathy towards vouchers for paying school fees, going against an American tradition of separating church and state in the field of education.

• Food labelling 

He sided with U.S. meatpackers who argued that the Department of Agriculture was violating the First Amendment [on free speech] by requiring labels disclosing where each step of the meat production process took place — part of the basis of it was support for American manufacturers, farmers and ranchers against foreign competition.

• Internet neutrality

He called the Federal Communication Commission’s net neutrality order an "unlawful” First Amendment violation in a 2017 dissent.

• Environment and climate change 

Kavanaugh has acted on dozens of environmental cases, for example writing a decision that rejected attempts by the Environmental Protection Agency to curb air pollution that crossed state lines. Ruling on an EPA rule governing toxic mercury from power plants, he wrote the EPA had acted wrongly in not weighing costs when it first decided to write a regulation and later the regulation was overturned.

The record shows why many Americans fear that the Kavanaugh appointment, giving known conservative thinkers a 5-4 majority on the Supreme Court, will turn back the clock and create social injustices.

BACKGROUND COUNTS

Also, the thinking and make-up of the man are less clouded when looked at in terms of his background and political activities. This shows up as an American version of privilege, contempt for the weak against the strong, and service to institutions that preserve the status quo.

In a republic, such characters are not literally to the manor-born, but the affiliation of money and social advantage copies European aristocracies.

Young Brett Kavanaugh, son of a Washington lawyer and corporate lobbyist, went to an expensive preparatory school — the period in his life called up in the accusations made before his confirmation this year.

The proposition was that the social conservatism and sexual repression that went with his money background got contradicted by wild stuff like binge drinking and setting up “rape parties” against vulnerable girls. It’s a theme of privilege, entitlement and impunity — you can get away with doing anything you want and still go on to great things.

The prep schools are also well placed for getting boys into the high-fees zone of elite universities like Yale — reputedly providing the best professional education that money might buy.

Because of the social inequality aspect and the hypocrisy aspect, scepticism about a product such as Kavanaugh (studious, earnest, pious, and sincere on the account of his friends and himself), is not new. This scepticism and disapproval are common in American culture, generally.

A brief example of the 1960 movie Where the Boys Are comes to mind, where a Mid-West girl besotted with meeting some “Yalies” on holiday gets raped by one of them.

RINGING BAD BELLS WITH MANY AMERICANS

Whether the man, as a boy, was an exploitative bully and a sexual predator, to many Americans the story had a familiar ring when Dr Blasey Ford and other female associates from school-days or university began coming out against him.

It had a familiar ring, when the Republican Party pushed on with his appointment, over the objections of elected legislators that not enough documentary evidence (from Kavanaugh's time as a White House employee) and not enough time had been given to the important process.

For additional protection, the all-male Republican contingent on the nomination committee had put up a woman “prosecutor” to ask their questions — helping to represent the hearing as an unfair trial.

It had a familiar ring when the man gave evidence to the Senate Committee last week, seen almost everywhere as a party-political tantrum of anger, over-entitlement, defiance and disdain for the elected body — though praised by President Trump as dignified and convincing.

At one point, Kavanaugh suggested the Democrats were running a vendetta because of his past legal work on the impeachment case against President Bill Clinton — though in the later damage control, he volunteered some regret for that as a lapse against expected impartiality.

The performance was called out by Democratic Senator Dianne Feinstein and others as arrogant and not showing the “impartial temperament” or “judicial temperament” needed for the job.

Even a few Republican members were put off with Senator Jeff Flake (who ended up voting for Kavanaugh anyway), stating:

“The interaction with the members was sharp and partisan.”

There was a familiar ring whenever the career notes were published.

Graduating from Yale in American history and then law, Kavanaugh was admitted to the bar in 1990, worked as a law clerk with a conservative judge, then later worked for Special Prosecutor Ken Starr in the 1998 case against President Clinton. Focused on Clinton’s sexual affair with a young White House intern, the conduct of the case was marked by the leaking of commentary and advice, in the hypocritical tradition, both titillating and pious at once.

The career main-chancing changed to more overtly partisan service to the powerful, after that, with the end goal of getting loyal young Brett a seat on the Supreme Court.

It began with assisting President George W. Bush to get the vote in Florida — and therefore the Presidency. (In the 2000 election, a close vote in that deciding State overwhelmed the ramshackle electoral machinery set up by the Florida State Government, causing a tense legal and political stand-off and eventually a thin win for the Republicans). Kavanagh then became legal counsel to the Bush White House — up to that time, one of the most determinedly conservative regimes.

Among other actions, the Bush Administration was given to foreign invasions or the scrapping of legal protections governing corporate exploitation of the environment and it made its lawyer, Brett Kavanaugh, a Federal Judge.  

Media editor Dr Lee Duffield is a former ABC foreign correspondent, political journalist and academic.