06:27, August 31 293 0 theguardian.com

2018-08-31 06:27:14
Should Kavanaugh occupy the swing vote seat? His judicial record says no

Why is Judge Brett Kavanaugh so unpopular in the court of public opinion? A recent CNN poll revealed that only three in 10 women surveyed think he should be confirmed as an associate justice of the supreme court. Overall, only 37% of those polled (equally weighted to Democrats and Republicans) support his confirmation. The reason why becomes painfully apparent upon a close review of his judicial record.

No one can seriously quarrel with the proposition that he is qualified for the position. He is a graduate of Harvard College and Yale Law School, clerked for three federal judges including a justice of the supreme court, has taught at top law schools, has been an appellate judge for 12 years, and has served in responsible positions in the White House. But that is only half the story. The other half, and by far the more important half, is his record during his many years of public service – and what that record reveals about how he might influence supreme court decisions for the next several decades.

The stakes are high. In many important recent decisions the supreme court has split along ideological lines, with four so-called “liberal” justices on one side and four so-called “conservative” justices on the other. The members of each camp are well known. The liberals: Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan. The conservatives: Justices John Roberts, Clarence Thomas, Samuel Alito and Neil Gorsuch. The retirement of Justice Sandra Day O’Connor left only Justice Anthony Kennedy as a swing vote, and it is his seat that Kavanaugh would fill.

Is Kavanaugh a centrist – a middle-of-the-road jurist who can be counted on to take a non-ideological stance and continue to occupy a swing vote position? Based on a close reading of his opinions, speeches and actions over the course of his career, I doubt it.

The best place to start is with his judicial decisions. During his 12 years on the bench, he has authored more than 300 opinions. While it is impossible to discuss all of these cases, I chose a few that have caused or should cause concern to many Americans.

Several cases reveal an anti-worker, anti-union or anti-immigrant bias. In one case, Kavanaugh dissented from a majority opinion that would permit undocumented workers to be counted as employees and therefore able to vote in union elections. Kavanaugh would exclude them. In another case, he dissented from a majority opinion that would guarantee the protections of the Age Discrimination in Employment Act and the Americans with Disabilities Act to US citizens working abroad. Kavanaugh would deny those workers those protections. In a third case he dissented from a majority opinion that would require “individualized suspicion” before government employees working in the Job Corps could be drug tested. Kavanaugh would allow drug testing on a random basis without a demonstration of individualized suspicion.

In one case that has drawn a lot of attention, Kavanaugh dissented from a majority opinion that required an employer to institute safety measures after an animal trainer was killed by a killer whale. In that dissent, he wrote that the trainer knew the risks of working with killer whales and therefore the employer was not required to take any special steps to provide protection. Indeed he thought it was “irrational” to require an employer to do so.

Kavanaugh’s positions on criminal justice issues are of equal concern. In one case, the majority of a full appellate court held that unzipping a defendant’s outer jacket during an identification procedure constituted unlawful search because there was no probable cause for the police to do so. Kavanaugh dissented, writing that he would allow the police to “maneuver” a suspect’s clothing to facilitate identification, and arguing that this was not a search requiring probable cause.

As a judge who was closely involved in examining New York’s stop-and-frisk program, there is little doubt in my mind that such tactics fall disproportionately on people of color. Yet Judge Kavanaugh justified police stops in two cases where a person was driving in a “high crime area” and “appeared to be extremely nervous” when officers stopped his car. How exactly would Kavanaugh define a high crime area? He doesn’t tell us.

One of Kavanaugh’s opinions appears to support the notion that voter ID laws are not discriminatory and should be allowed because of “voting system problems exposed during the 2000 elections”. That opinion should concern the many voting rights organizations who believe conservatives are trying to rationalize voter suppression. Issues involving voting rights – including questions of gerrymandering – will definitely be brought to the supreme court in the next year or two.

Other opinions by Kavanaugh show that his appointment would threaten the continued existence of the Affordable Care Act and a woman’s right to choose. In a recent dissent, Kavanaugh wrote that it would unfairly burden religious organizations to merely require they submit a form requesting exemption from the Affordable Care Act’s contraception mandate. In another case, Kavanaugh authored an opinion that would have denied an immediate abortion to an undocumented minor. His opinion was vacated by the full court. In a dissent from that order Kavanaugh wrote that the majority’s decision would recognize “a new right for unlawful immigrant minors in US government detention to obtain immediate abortion on demand”. He went on to say that “the government has permissible interests in favoring fetal life ... and refraining from facilitating abortion.”

In a recent speech Kavanaugh praised both “originalism” and “textualism”, which are known as code words for the notion that the right to an abortion is not found anywhere in the constitution, nor was it something that the founders would have condoned as it is not a right firmly established in the nation’s history. The same can obviously said about the right to obtain contraceptives or the right to marriage equality.

Kavanaugh has also expressed strong views on deference to executive power. While he once staunchly defended the supreme court’s decision compelling former president Richard Nixon to respond to a subpoena in the context of the Clinton investigation, he now says he believes that that case may have been wrongly decided. This is a forecast of how he might rule should Donald Trump be subpoenaed to testify before a grand jury. Similarly, when he worked with Kenneth Starr on the Clinton impeachment proceedings, Judge Kavanaugh strongly – in fact relentlessly – sought to indict or impeach the president. Now that the shoe is on the other foot he has said he thinks his actions then were mistaken. Does anyone think he would be fair and impartial in deciding whether Trump could be indicted while he is office?

There is much more that could be said. My only hope is that Kavanaugh’s upcoming confirmation hearings – which will unfortunately be held without the benefit of a full record of his years serving as senior counsel and staff secretary to former president George W Bush – will be rigorous in their review of the man who would replace Kennedy. And I cannot help but end by noting that the man who has nominated this would-be justice, Trump, is under investigation by state and federal prosecutors – but nonetheless retains the power to affect the judicial branch for decades to come.

  • Shira Scheindlin is a lawyer with Stroock & Stroock & Lavan. Judge Scheindlin served for 22 years as a US district judge for the Southern District of New York