The Kavanaugh fight is over — the fight for the judiciary is not

The Kavanaugh fight is over — the fight for the judiciary is not
© Greg Nash

After a long, bitter fight over his fitness to serve, Brett KavanaughBrett Michael KavanaughPence calls for Roe v. Wade to be sent to 'ash heap of history' ahead of abortion ruling Supreme Court to hear landmark abortion case this week Roe redux: Is 'viability' still viable as a constitutional doctrine? MORE is now an associate justice of the U.S. Supreme Court. In the aftermath of this bruising process, many civil rights and social justice advocates are likely feeling tired and demoralized. With Kavanaugh confirmed, the Supreme Court is likely to begin rolling back critical protections for people of color, women, and other vulnerable communities.

But for anyone who cares about the federal courts’ commitment to delivering equal justice for all, there is no time to lick wounds. The Supreme Court is just one piece of the federal judiciary. Of the thousands of cases that come before federal courts, only about 80 are argued before the Supreme Court each term.

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In most cases, the last word goes to one of the 13 federal appeals courts, giving them enormous influence over the shape of American law. Since taking office, the Trump administration has been working to move these courts to the right, a campaign that continues Wednesday, when the Senate Judiciary Committee will consider two nominees to federal appeals courts, both of whom have troubling records on a wide range of civil rights issues.

One of them is Chad Readler, a nominee for the Sixth Circuit Court of Appeals who until recently led the Justice Department’s Civil Division. In that capacity, he was responsible for defending many of the Trump administration’s most reprehensible policies, including its inhumane separation of families at the U.S. border, its discriminatory ban on immigration from Muslim-majority countries, its relentless assaults on the health care of more than 50 million Americans with pre-existing conditions, and its efforts to suppress minority votes.[1] 

Positions like these are nothing new for Readler. In a 1998 op-ed, he argued that “local governments should be taken out of the business” of passing anti-discrimination laws stronger than existing federal protections. And in a2004 article, he contended that defendants as young as 16 or 17 should be subject to the death penalty, saying that such a policy did not violate the Eighth Amendment’s prohibition of cruel and unusual punishment. 

Also up for a lifetime seat on the Sixth Circuit is Eric Murphy, currently Ohio’s solicitor general. Like Readler, Murphy has been an ardent opponent of many key civil rights protections. He defended Ohio’s attempts to defund Planned Parenthood, claiming there was no evidence that doing so would reduce abortion access in the state. (Ironically, the Sixth Circuit, the court Readler hopes to join, ruled against Ohio in this matter.)

Murphy filed a Supreme Court brief defending Ohio’s ban on same-sex marriage in Obergefell v. Hodges. Most recently, he successfully argued in the Supreme Court that Ohio should be allowed to purge infrequent voters from its election rolls, which coudl disenfranchise people of color, veterans, low-income, and disabled citizens.

Murphy and Readler hail from Ohio. Traditionally, judicial nominees have needed the sign-off of both their state’s senators before receiving a hearing, but that norm, like so many others, has been disregarded under Republican leadership. Wednesday’s hearings are scheduled to go forward, even though Sen. Sherrod BrownSherrod Campbell BrownPowell says Fed will consider faster taper amid surging inflation Biden faces new pressure from climate groups after Powell pick Five Senate Democrats reportedly opposed to Biden banking nominee MORE (D-Ohio) has refused to approve either nominee.

It’s also customary for the Senate to delay hearings until the nonpartisan American Bar Association issues its rating of a nominee’s fitness to serve on the bench. But the Judiciary Committee ignored that practice in the case of Jonathan Kobes, Trump’s nominee for the Eighth Circuit Court of Appeals. Three weeks ago, citing Kobes’s lack of experience, the ABA deemed him unqualified, making Kobes the sixth of Trump’s nominees to receive the group’s lowest rating.

Kobes’s thin resume isn’t the only cause for concern. As a private attorney, he represented a group of fake women’s health centers in South Dakota in their fight to uphold a state law requiring doctors to read an anti-abortion script to women seeking to end their pregnancies. 

Asked by a Dutch journalist about the propriety of President TrumpDonald TrumpOmar, Muslim Democrats decry Islamophobia amid death threats On The Money — Powell pivots as inflation rises Trump cheers CNN's Cuomo suspension MORE’s attacks on federal judges, Kobes equivocated, calling them “nuanced.” He also made questionable statements about immigration, expressing concern about his state’s growing diversity and lamenting the “fading” of “Judeo-Christian ethical standards.” Despite these red flags, the Judiciary Committee was prepared to vote on his candidacy on Sept. 20; the vote was postponed because of allegations against Kavanaugh.

Nominees like Readler, Murphy, and Kobes have received far less attention than Kavanaugh, but they are just as committed to rolling back the hard-won progress of the last 60 years. The showdown over the Kavanaugh nomination was a deeply important fight. But for Americans who care about the integrity of our courts, the fairness of our laws, and the equal rights of all, it cannot be the only one.

Todd A. Cox is director of policy at the NAACP Legal Defense and Educational Fund, Inc.