Brett Kavanaugh represents evolution in Supreme Court nominations. Yes, he is a televangelist’s dream nomination. But he also may bring televangelists’ nightmares. No one denies that he is a facile legal manipulist. But his glib encomiums to “textualism” and “original intent” barely cover, and never explain his clear, substantive rejection of so many fundamental principles that the Founding Fathers held.
Before we look at what his legal positions are on any issue, we should clearly recognize why he was chosen first from all the zealous political partisans on the Federalist Society’s nomination list. Kavanaugh is a Republican Party loyalist. His career has always been in serving the Party and the corporations that control the Party.
He worked on the effort to impeach President Clinton, and to assist any private party who wanted to sue Clinton. Then he worked on the effort to overcome the true Florida vote count, in order to get Cheney and Bush appointed to the White House. As the Cheney/bush administration unravelled in a series of disastrous (but extremely profitable) wars and economic collapse, Kavanaugh reversed his “prosecute the President” stance and wrote legal arguments that no Republican president should be subject to legal attack while in office, and maybe later.
Kavanaugh was simply appointed because he guaranteed The Donald that he will be a constant vote on the Supreme Court against allowing any legal process to reach The Donald.
In the current flood of information on open corruption at cabinet and White House level, Brett Kavanaugh was simply appointed because he guaranteed The Donald that he will be a constant vote on the Supreme Court against allowing any legal process to reach The Donald. And he guaranteed the Donald that he is a vote to uphold a presidential pardon by the president needing the pardon.
The pundits of the corporate “liberal media” are already flooding the airwaves and internet with claims that Brett Kavanaugh is a “textualist”. That is, he says that the Constitution and statutes must be interpreted using the meaning that their words had at the time they were written, and that the writers meant every word that they wrote.
This gets to be a problem when courts have to deal with actual issues in a world more than 200 years after the Constitution was written. Kavanaugh has written that powers not given to the Federal government by the Constitution should rest in state governments, with no Federal right to interfere. Yes, this means that, according to Kavanaugh and other “strict constructionists”, the Federal government has no business interfering with state laws on education. Kavanaugh believes that Brown v. Board of Education was as wrong as he thinks Roe v. Wade was. These are cases in which the Federal government just had no business being involved.
A reader could be excused for thinking that this principle applies uniformly. But it doesn’t. The Constitution doesn’t mention airplanes or regulating air travel, even though air travel by balloon was common when the Constitution was written. So the Founding Fathers must have intended that air travel be regulated by the states. But not in Kavanaugh jurisprudence. Because air travel is very profitable for many large corporations, it enjoys an exception in the world of “Original Intent Textualists” (OITs).
A sensible person might argue that having federal (even international) regulation of air travel is necessary as a matter of modern world practicality. That sort of thinking, based in facts and logic, is anathema to “OITs”. Trying to cram modern reality onto the holy writ of 18h Century Constitutional language could open the door to all sorts of Federal regulatory horrors, such as air and water pollution standards (both opposed by Kavanaugh), education standards (opposed by Kavanaugh) and even Federal efforts to limit racial, gender and economic voter suppression at the state level (opposed by Kavanaugh).
Instead of permitting an exception for air travel regulation as a matter of modern practicality, OITs see it as matter of corporate necessity, or at least desire. The Founding Fathers wrote quite a lot about corporations, almost all of it critical and cautionary. Thus, any logically inclined reader would think that when the Founding Fathers didn’t give citizenship rights to corporations, or any specific protection to them in the Constitution, they meant what they wrote. Indeed, many of the Founding Fathers wrote very critically about corporations and wrote about the need to protect society under the new government from the constant misconduct of corporations.
As a sitting judge, and a devout OIT, Brett Kavanaugh has written numerous times that corporations are a favored class of citizen, entitled to special Federal protections against regulation by the states, and from suits by injured people. The Republican corporatist ‘justices’ on the Supreme Court have repeatedly upheld corporate rights to force their customers and employees into one-sided, unfair “arbitration” agreements. But not a word in the Constitution grants either the Congress or the Courts such power over customers and employees.
The OITs zeal to hamstring the ability of customers and employees to find recourse for injuries inflicted in the all-important quest for profits provides a clear picture of the hypocrisy of the “Textualist” and “Original Intent” pretenders, like Brett Kavanaugh. Although there is no Constitutional mention of Congressional or Judicial power to authorize such enslavement of customers and employees, OIT judges uphold such power, even as they strike down Congressional efforts to legislate restrictions on corporate rights to dump pollution anywhere they choose. And they strike down Executive branch efforts to enforce such legislation, although the Constitution explicitly charges the Executive to enforce the laws that Congress enacts.
The OIT ‘philosophy’ of strict construction of Constitutional language leads to more self-contradiction on gun control. Remember, no modern meanings - only what the Founding Fathers intended. In D.C. v. Heller the Republican ‘justices’ gave everyone the right to own guns, and also ruled that the Founding Fathers intended that the first 13 words of the 2nd Amendment were to have no meaning. Thus, all the words have meaning, except where any meaning might adversely impact one of the nation’s most profitable industries, and that industry’s Russian funded PR and lobbying operation.
Brett Kavanaugh took this hypocrisy to a new level, writing explicitly that the Founding Fathers intended modern assault rifles, AR-15s and AK-47, etc. to be publicly available through the 2nd Amendment. No matter that no Founding Father ever expressed any such intention, or even any expectation that assault rifles would exist 200 years after the American Revolution was fought with single shot flintlock rifles.
But Brett Kavanaugh evolves from his OIT brethren because he believes in science. He acknowledges that science is real, and that global climate change is man made. But he continues the OIT rejection of any authority of the government to act to stop or even slow climate change. His “Original Intent Texualism” rejects the notion that the Founding Fathers meant climate change (or pollution, or strip mining, or clear cut logging) when they charged the government with the responsibility to protect the general welfare.
He also rejects the Founding Fathers’ concept of “balance of power” between the three branches of government. As an acolyte during the Cheney/Bush administration, he fell in love with the “royal” presidency. His judicial rulings and his writings, so far, have argued for an imperial presidency, rather than one which can be controlled by Congressional laws or by Judicial action.
For Kavanaugh, the big restriction on Executive power is corporate privilege. Although the Executive can act with wide discretion, it is constrained, like the Congress, from doing things that interfere with corporate profits, like imposing pollution controls, labor protections or relief for injured consumers.
It remains to be seen how Brett Kavanaugh will deal with the 1st Amendment, which says the government may not enact any law respecting the establishment or the free exercise of religion. Kavanaugh has written a lot about historical traditions. One of the roots of the 1st Amendment was the public revulsion at the practice some states had of taxing people to pay for churches and to pay ministers from favored sects.
In recent decades, hugely wealthy business corporations have styled themselves as “churches.” They are given tax-exempt status, so that all their infrastructure demands are paid for by the taxpayers. And they put on fabulous entertainments, and rake in huge profits, very little of which are spent on any religious purposes.
A real OIT would look at this and note that the tax-exemption law is a law respecting the establishment of “religion” - none of these businesses would be so profitable without this law. Several of our Founding Fathers expressed their intentions about corporations and about religion. Ben Franklin famously said, “When a religion is good, I conceive it will support itself; and when it does not support itself, and God does not take care to support it so that its professors are obliged to call for help of the civil power, 'tis a sign, I apprehend, of its being a bad one.”
We will have to see whether Brett Kavanaugh agrees with the Founding Fathers or with the desires of the very profitable church corporations. He could surprise us. He could say that the 1st Amendment means what it says. He might even say, as past Supreme Court justices have not, that the 9th Amendment to the Constitution also means what it says. But either of those positions would be detrimental to the corporations which Kavanaugh has served for so long. So no one should hold their breath waiting for him to act like a true “Textualist”.