Kavanaugh

Photo via PoliticsUSA.

It's clear to me that Brett Kavanaugh is an extremist on the abortion issue, soaked in the rhetoric of the movement, from his conduct in the Jane Doe case, as Mark Joseph Stern wrote at Slate:

Under Casey, the government cannot impose an “undue burden” on a woman seeking an abortion before viability. Yet the Trump administration had imposed a flat ban on abortion for undocumented minors in federally funded shelters. (It maintained that minors who wished to terminate their pregnancies should either find a sponsor in the U.S.—a near impossible task for many without family here—or leave the country.) Kavanaugh held that this position did not constitute an undue burden, in a ruling which would have forced “Jane Doe,” a 17-year-old who was already 15 weeks pregnant, to continue her unwanted pregnancy. [Unable to leave Texas and its almost complete ban on abortion after 20 weeks, she'd soon have no legal choice.]

The full D.C. Circuit swiftly overturned Kavanaugh’s ruling and granted Doe access to abortion. In response, Kavanaugh penned a furious dissent that brimmed over with anti-abortion rhetoric. The majority, he sneered, had granted Doe “abortion on demand”—a phrase that, as Irin Carmon notes, is deployed by the right to “denote women capriciously making decisions for themselves.” He claimed that Doe was not mature enough to make this “major life decision” on her own, even though she had already received the necessary judicial bypass from a state court. And he asserted, incredibly, that the Trump administration was being unlawfully forced to “facilitate” Doe’s abortion by merely stepping aside and letting her obtain it. (This argument is fundamentally theological, not legal.)

I don't know what he told Senator Collins, and I actually don't care. I don't want to see him promoted to a court where the judges are allowed to make up their own precedents if he behaves like this on the circuit court, mansplaining Texas law to Texas judges and insisting that the White House has the right to force a stop to a completely legal medical procedure when there's no constitutional issue involved (I thought that was settled when the Bush administration lost the Terry Schiavo case and the poor woman was allowed to die in peace).


I don't want him in there ruling on labor issues, either, after his ferocious dissent in Sea World vs. Perez, where the court upheld an OSHA fine on the theme park for its failure to protect an orca trainer from being killed by her orca, who'd already killed another worker (nothing against the animals themselves, I'm a strict Free Williean) with useful safety measures:

Kavanaugh dissented, writing that the Department of Labor could not apply the Occupational Safety and Health Act to killer-whale performances (or sports events or entertainment shows). Kavanaugh’s argument was threefold: first, that the DOL had not previously taken jurisdiction over certain inherently dangerous jobs; second, that DOL “irrationally and arbitrarily distinguishe[d]” SeaWorld’s killer-whale show from the NFL or NASCAR; and third, that Congress did not intend OSHA to reach sports and entertainment.

He was historically wrong on that, or right about the slippery slope he perceived there: the "irrational and arbritrary" distinction he complained about has begun to fall away, and Sea World has led to a wider recognition that NASCAR drivers and professional football players (not to mention the NASCAR pit crews and other workers who endanger their lives for relatively crappy pay) deserve protection under OSHA too, if management is unwilling to keep them safe.

But I think the big question I want the Senators to ask him is what Trump is asking for. What did he say in the interview? Did he say, "I need loyalty, I expect loyalty," as he told FBI director James Comey before he decided to fire him because "I said to my self, I said you know, this Russia thing with Trump and Russia is a made up story..."? Did he ask him, as he asked Andrew McCabe, who he voted for in the 2016 election, before he decided to fire him (the day before McCabe qualified for a full retirement pension) in part because McCabe's wife was a (failed) Democratic candidate for the Virginia state senate?

Did Trump ask Kavanaugh, as he did deputy attorney general Rod Rosenstein, if he was "on my team"? When Kavanaugh accepted his nomination with such fulsome praise of the president's wisdom and care

No president has ever consulted more widely or talked with more people from more backgrounds to seek input about a supreme court nomination. Mr. President, I am grateful to you, and I’m humbled by your confidence in me.

was he thinking about the example of Neil Gorsuch, who almost got his nomination taken away for casting doubt on the wisdom of Trump's furious attacks on the federal judiciary?

Most important, did he ask Kavanaugh if he'd recuse himself as Supreme Court justice from any questions involving interactions between the Trump campaign and Russian state agencies? Because that's apparently what has enraged Trump about attorney general Jefferson Beauregard Sessions III, who works his tail off to deprive black people of votes and condemn immigrants to misery and despair just as Trump wishes him to do but insists on following DOJ rules and separating himself from the Mueller investigation in which he is personally implicated, having lied to Congress on more than one occasion about his own interactions with Ambassador Kislyak.

Because when Trump does you a favor he expects something in return (Gorsuch should have been asked too, but it's a little late), and Kavanaugh refuses to say whether he'll recuse himself or not. We need to know what Kavanaugh agreed to, or if he somehow evaded the question, or if contrary to his usual practice the president didn't ask anything at all. I'm not sure I'd believe Kavanaugh (it seems pretty clear that he misled or lied to the committee in 2006 when he was being confirmed for his job on the appeals court, pretending to know nothing about the Bush administration's abusive detention and torture policies—we can't know how much he was lying unless we can see the Bush administration documents that the Trump administration, claiming executive privilege, won't let us see), but I want him on the record.