09:56, July 10 150 0 theguardian.com

2018-07-10 09:56:05
Brett Kavanaugh's nomination is a victory for 'originalists'

Ed Meese was the cherry on top.

The 86-year-old former Attorney General was one of the first dignitaries President Trump trotted out at his carefully orchestrated, prime-time roll out of Brett Kavanaugh’s nomination to the US supreme court. Meese, Ronald Reagan’s right-hand man from California, is the godfather of Original Intent, the crackpot, right-wing legal theory that will, if Kavanaugh is confirmed, be enshrined for decades to come. For the first time since Reagan began stacking the court with Originalists like Antonin Scalia, they will, if Kavanaugh is confirmed, have a solid, unbending Court majority.

Kavanaugh’s nomination, no surprise, is a huge victory for the Originalists, conservative legal thinkers who believe in a strict, textual interpretation of the Constitution. They believe in adhering to the intent of Framers of the Constitution, white men whose outlook reflected 18th Century realities and whose thinking the Originalists believe they have a unique ability to divine.

Various mainstream legal scholars, including Harvard’s Cass Sunstein, have shredded the Originalist approach, showing how so-called strict construction of the Constitution can be used to justify horrifying, retrograde acts like banning contraceptives, discrimination against women and blacks and to nullify environmental protections. Originalism animates Kavanaugh’s legal career and infuses his 300 legal opinions. It isn’t conservative or principled, as Kavanaugh’s champions argue. It’s radical and retrograde.

That’s why right-wing nuts like Sean Hannity, who was reported to have preferred another candidate, Amy Coney Barrett, were doing cartwheels for Kavanugh after Trump’s announcement.

Originalists often turn out to be hypocrites. They pose as conservative defenders of the Constitution and then move in wild, new directions. That was manifest when Kenneth Starr, Kavanaugh’s old boss, overreached and tried to impeach President Clinton over a lurid affair with a White House intern.

In poring over Kavanaugh’s record, more needs to be known about where he stood on President George W Bush’s radical, post 9/11 restrictions on civil liberties, the cornerstone of the Constitution. How did this young Originalist justify overzealous policies like torture and rendition when he was Bush’s staff secretary? Surely, the Framers were frowning.

Of course, Originalists are especially untrustworthy when it comes to women’s rights, since the Framers were noticeably silent in granting distaff power. There have been glowing accounts of Kavanugh’s clerkship for Justice Anthony Kennedy, but little said about his sojourn in the chambers of Judge Alex Kozinski of California, whose rampant sexual harassment of women forced his abrupt retirement last year. Roe v Wade is anathema to most Originalists. Expected staunch opposition from women’s groups and possible defections from Republican Senators like Lisa Murkowski and Susan Collins help explain Monday night’s White House paeans to Kavanugh’s mother, wife, daughters and the women’s basketball team he coaches.

According to Adam Liptak, the always-wise New York Times correspondent who covers the Court, Judge Kavanaugh, “has written countless decisions applauded by conservatives on topics including the Second Amendment, religious freedom, the campaign finance. But they have particularly welcomed his vigorous opinions hostile to administrative agencies, a central concern of the modern conservative legal movement.”

A dissent that surely must have comforted Trump as he reportedly tossed and turned over who to pick was one in which Kavanaugh attacked the Consumer Financial Protection Bureau and promoted the notion of an all-powerful Presidency.

“To prevent tyranny and protect individual liberty, the framers of the Constitution separated the legislative, executive and judicial powers of the new national government,” Judge Kavanaugh wrote. “To further safeguard liberty, the framers insisted upon accountability for the exercise of executive power. The framers lodged full responsibility for the executive power in a president of the United States, who is elected by and accountable to the people.”

Another source of comfort was surely that Kavanaugh, departing from his past work for Starr, amended his views in a 2009 article and decided Presidents should not be distracted from doing their jobs by pesky legal prosecutions.

From the get-go, I figured Kavanaugh would be Trump’s pick. His perfect macho looks, his perfect academic pedigrees, his full backing from the Federalist Society all lined up. Best of all, he once mouthed the word bitch as he looked at Hillary Clinton on TV, according to David Brock.

For Trump, that certainly must have been the cherry on top.

  • Jill Abramson is a Guardian US columnist

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