This article was written on Tuesday, Sept. 18. As such, any new information that may appear before time of publishing (Friday, Sept. 21) has not been incorporated into this opinion.
I would like to preface this entire piece by stating that under no circumstances should Brett Kavanaugh be confirmed to the Supreme Court until either hearings have been held regarding the sexual assault allegations placed against him by Professor Christine Blasey Ford and the matter resolved, or the allegations are withdrawn. I will not comment on whether I believe the allegations to be true, though I think it should be obvious that if they are found to be true he should not be placed on the Supreme Court. What follows is an opinion not influenced by the above allegations.
Judge Brett Kavanaugh holds views on the United States Constitution that should make any reasonable person nervous. His views regarding the establishment clause (The government shall make no law respecting the establishment of religion) are downright scary, setting the lowest possible bar for ‘establishment’ and ignoring precedent, opting to use his own rule rather than the established Endorsement Test. His rule is that utterance of religious phraseology, even of specific religions, by government officials is permissible as long as it is not proselytizing nor exploitative. This is such a narrow view of establishment that even statues of the Ten Commandments on public land, something that plainly violates the establishment clause, could be considered to not establish religion.
Kavanaugh’s views on abortion are at best unclear. During the hearings last week, he acknowledged that Roe v. Wade set precedent and that there has been precedent set atop that precedent, apparently indicating that he would uphold that precedent, but he actually made no explicit indication that he would do so. Unfortunately, the example that many people use of Kavanaugh’s stance against abortion is not a very good one. The example is a dissent he wrote arguing that an illegal immigrant who happened to be a minor should not be allowed to obtain “immediate abortion on demand.” However, the ruling seems to be far more about the rights of minors to have abortions, and, while I disagree with him, this ruling can hardly be generalized to a stance on abortion as a whole. It is worth pointing out that in his dissent he did not mention Roe v. Wade despite referring to precedent a number of times, which could indicate that he would not uphold it as a justice.
Kavanaugh’s most dangerous view, in my opinion, is his view on presidential power. According to him, the President must follow all laws “unless the President deems the law unconstitutional, in which event the President can decline to follow the statute until a final court order says otherwise.” Such a stance means that the President can unilaterally determine a law to be unconstitutional and act as if that law does not exist until a court weighs in, and could be understood to mean that any actions taken between the decision and a court ruling would not be punishable, even if the court finds the law not unconstitutional. If that’s not convincing, he has also said that “Congress might consider a law exempting a President—while in office—from criminal prosecution and investigation,” implying that he does not think such a law would be unconstitutional.
Regarding the hearing itself, the rush that the Senate seems to be in is striking, especially considering that not a single hearing was held for the confirmation of Merrick Garland, former President Barack Obama’s appointment to the Supreme Court, in the more than 300 days between his nomination and President Trump taking office. As Kavanaugh’s hearings began, there was an almost immediate motion to adjourn the hearings due to the delivery of thousands of documents not 15 hours before, leaving the senators with no chance to accurately review Kavanaugh’s qualifications.
All told, I do not think that Kavanaugh should be confirmed to the Supreme Court, though I cannot imagine any future Trump nominees being any better.
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