Justice Kennedy’s replacement must be an honest and fair-minded arbiter, Kavanaugh falls well short of this test
© Greg Nash

This week the Senate will begin hearings on President Donald Trump’s nominee to replace Justice Anthony Kennedy on the U.S. Supreme Court. In many of the landmark cases to come before the Court in recent years, Justice Kennedy represented a bulwark against extreme views, and his retirement raises questions as to whether his replacement will similarly bring an honest and fair-minded approach to the bench. Americans want and expect of those entrusted to sit on our highest court not only an understanding of the Constitution and the application of our laws, but an open minded approach in passing judgment. Yet, with the nomination of Judge Brett Kavanaugh, it is clear President TrumpDonald John TrumpRosenstein expected to leave DOJ next month: reports Allies wary of Shanahan's assurances with looming presence of Trump States file lawsuit seeking to block Trump's national emergency declaration MORE intends to fundamentally shift the balance of the court.

It seems inevitable that Judge Kavanaugh’s appointment would cement extreme legal ideology in this country, and his background explains exactly why he cannot be trusted to bring the open-minded approach we need on the Court.


Throughout his career, Judge Kavanaugh’s work has demonstrated a clear political agenda rather than an open mind. During his tenure on the federal appeals court for the District of Columbia, Judge Kavanaugh showed a disturbing lack of concern for Americans’ fundamental rights, for the impact of the law on the well-being of ordinary people, and for the separation of powers that maintains our democracy.

His record depicts a political view that routinely sides with big business, defers to the influence of money and power in our political process, allows authority to be consolidated under the president without accountability, and believes in limiting protections based on age, race, gender, religion, ability, sexual orientation or national origin afforded under the Constitution.

Such an extreme ideological slant should be of little surprise to those who know Judge Kavanaugh’s record as a partisan lawyer who worked for Kenneth Starr during his investigation of President Clinton, represented the Bush-Cheney campaign in the 2000 Florida recount, and held a political appointment as a lawyer in President George W. Bush’s White House. This experience, in and of itself, is not disqualifying, but it is telling that in important cases that concern hotly contested policy and political issues, Judge Kavanaugh consistently favors extreme conservative positions that reflect his political background and project a partisan agenda.

On issues ranging from reproductive rights to health and safety to criminal justice to consumer protections, Judge Kavanaugh has routinely shown a political influence in his interpretation of the law. From the NRA to oil and gas corporations to religious extremists, Judge Kavanaugh has sided with extreme conservative positions. And so, as the Senate begins consideration of Judge Kavanaugh’s nomination, the American people must understand what rights, protections and freedoms are potentially on the line should he be confirmed.

For example, last year, Judge Kavanaugh dissented from the D.C. Circuit Court’s decision that a young, undocumented woman being held by the govenment could not be prevented from having an abortion. Judge Kavanaugh called it “immediate abortion on demand,” and delivered an opinion to deny her her constitutional right. Regardless of what he may disingenuously say now about Roe v. Wade being “settled law,” Judge Kavanaugh’s confirmation would clearly mean the end of the practical right to access to abortions for most American women. In another dissent, he sided with allowing employers to impose their religious beliefs on employees by denying them contraception coverage guaranteed by the Affordable Care Act. This would have left hundreds of thousands of women with no way to afford contraception simply because their employers objected to it.

Judge Kavanaugh has also consistently favored the interests of big businesses over the interests of ordinary people in one area of law after another. In 2016, Judge Kavanaugh voted to overturn a National Labor Relations Board ruling that affirmed union members’ rights to display pro-union signs in their cars on the employer’s property. His political views in favor of big business would also suggest a hostility towards attempts to rein in runaway special-interest campaign spending. Decisions like Citizens United could become a regular occurrence, further empowering large financial interests to exert their undue influence on our democratic process at the expense of American voters.

And when it comes to executive power, Judge Kavanaugh’s positions show the greatest reason for concern. The monumental impact Judge Kavanaugh’s confirmation would have on the rule of law and separation of powers cannot be overstated, especially given the significant role he could play in the ongoing investigation by Special Counsel Robert MuellerRobert Swan MuellerSasse: US should applaud choice of Mueller to lead Russia probe MORE. Judge Kavanaugh has said that even requiring a president to submit to civil or criminal subpoenas—as the Supreme Court required of Presidents Nixon and Clinton—is an undue burden on the presidency. This view could not only hamstring the Special Counsel’s investigation, it places the presidency above the rule of law and could make it more difficult for Congress to check the president and hold the administration accountable.

These are just a handful of the numerous issues that are at stake with this nomination. As we saw in the confirmation hearing with Justice Gorsuch, Judge Kavanaugh will no doubt claim to be a neutral judge and to follow the principle of stare decisis. However, his record and overwhelming conservative political bias in the courtroom have shown us time and time again that this would not be the case. Whoever replaces Justice Kennedy on the Supreme Court must be an honest and fair-minded arbiter who does not believe in an imperial presidency and will uphold and defend the rights of all Americans. Judge Kavanaugh falls well short of this test. Because of this, I strongly urge my colleagues in the Senate to withhold their consent on his nomination.

Nadler is ranking member of the House Judiciary Committee.