Progressive and LGBT groups are marshaling efforts to block the confirmation of Brett Kavanaugh, but the odds are against them as signs indicate the nominee has a clear path to the U.S. Supreme Court.
At an event in the East Room of the White House on Monday, President Trump announced he had selected Kavanaugh, who has served for 12 years as an appellate judge on the U.S. Court of Appeals for the D.C. Circuit, to succeed U.S. Associate Justice Kennedy on the bench.
“This incredibly qualified nominee deserves a swift confirmation and robust bipartisan support,” Trump said. “The rule of law is our nation’s proud heritage. It is the cornerstone of our freedom. It is what guarantees equal justice. And the Senate now has the chance to protect this glorious heritage by sending Judge Brett Kavanaugh to the United States Supreme Court.”
Kavanaugh’s ties to the Republican Party go back decades. In the 1990s, he assisted U.S. Special Counsel Kenneth Starr in his investigation of President Clinton over his affair with Monica Lewinsky, which led to his impeachment. Kavanaugh was also a legal counsel to the White House during the George W. Bush administration.
The public record has yielded scant information on Kavanaugh’s views — legal or otherwise — on LGBT issues, although groups that support LGBT rights say his presence on the list of predetermined 25 choices coordinated by the Federalist Society and Heritage Foundation from which Trump said he’d choose his nominees is reason enough for the LGBT community to fear him.
Why else would these right-wing groups support him and place him on that list of potential nominees if they didn’t think he would advance the conservative agenda in the courts, which would include compromising LGBT rights and undermining — if not eliminating — marriage equality?
Eric Lesh, executive director of the LGBT Bar of New York, or LeGaL, said during a national call-in panel on Tuesday the support of right-wing groups for Kavanaugh speaks volumes.
“These are groups that use hatred and fear-mongering to target the rights of the LGBT community and as we know, they are handpicking their federal judges,” Lesh said.
When former President George W. Bush nominated Kavanaugh to the D.C. Circuit in 2005, the nominee was strongly supported by the anti-LGBT Family Research Council, which vigorously opposes LGBT and abortion rights.
Tony Perkins, president of the Family Research Council, said in a statement Monday that support continues today upon Trump’s nomination of Kavanaugh to the Supreme Court.
“President Trump promised a constitutionalist — someone who will call balls and strikes according to the Constitution,” Perkins said. “We trust the president that Judge Kavanaugh will fit this mold as a justice. Judge Kavanaugh has a long and praiseworthy history of judging as an originalist, and we look forward to having a justice with his philosophical approach on the court.”
While Kavanaugh’s record on LGBT issues is scant, he has writings from the bench and elsewhere contrary to progressive legal views.
Prominent among them is a dissent he wrote in a case against “Jane Doe,” an undocumented teen in immigration detention who was barred from having an abortion. Although the D.C. Circuit ordered the U.S. government to grant the abortion, Kavanaugh disagreed, arguing “government has permissible interests in favoring fetal life.”
In 2015, Kavanaugh also dissented when the D.C. Circuit refused to allow a rehearing of Priests for Life v. HHS, a case filed by religious groups seeking to get out of Obamacare’s contraception mandate. Citing the Supreme Court’s decision in the Hobby Lobby case, Kavanaugh argued “the regulations substantially burden the religious organizations’ exercise of religion because the regulations require the organizations to take an action contrary to their sincere religious beliefs.”
At a time when U.S. Special Counsel Robert Mueller is investigating Russia’s influence on the 2016 election and possible collusion with the Trump campaign, Kavanaugh has opined that sitting presidents cannot be indicted, which has led progressives to speculate Trump chose him to get out of upcoming corruption charges.
Leslie Proll, a civil rights lawyer who advises the NAACP on judicial nominations, said Kavanaugh’s past decisions are bad news and his confirmation would amount to remaking the court in the image of Trump.
“He has been a strong and consistent voice for the wealthy and the powerful,” Proll said. “Over and over again, he’s ruled against civil rights, workers’ rights, consumer rights and women’s rights. We view him as a dangerous ideologue whose extreme views on civil rights would lurch the court to the far right.”
Kavanaugh is nominated to the Supreme Court as a number of cases on LGBT issues are percolating and could reach the high court in the near future. Among them is litigation challenging Trump’s transgender military ban, cases seeking coverage of LGBT people under federal civil rights law and a lawsuit in which businesses are seeking religious exemptions to engage in anti-LGBT discrimination.
Shannon Minter, legal director for the National Center for Lesbian Rights, said in the conference call “the gravity of this nomination — both to LGBT people and our country as a whole — cannot be overstated,” predicting doom on these LGBT cases if Kavanaugh is confirmed.
“There’s nothing in Judge Kavanaugh’s record to suggest that he would understand the real world impact of these issues on the actual lives and well-being of LGBT people, or that he would be anything other than a consistent vote to deny basic freedoms to equality both to LGBT people and to other vulnerable groups,” Minter said.
While Senate Majority Leader Mitch McConnell (R-Ky.) has promised a confirmation vote on Kavanaugh this fall, progressives have launched a #SaveSCOTUS campaign against the nominee that began with a rally at the Supreme Court Monday as Trump made his announcement.
Marty Rouse, national field director for the Human Rights Campaign, said the organization will contribute to that effort by mobilizing its 3 million members against Kavanaugh, whom he called “a threat to women’s reproductive rights, a threat to affordable health care and a threat to LGBTQ equality.”
“This is a White House that has made rolling back LGBTQ rights a top priority, and having another seat on the Supreme Court is a further vehicle to push that hateful agenda,” Rouse said.
Rouse said the focus of the effort will be in Maine and Alaska, which are represented by moderate Republicans Sens. Susan Collins and Lisa Murkoski. Also a focus are red-state Democrats up for re-election: Sens. Heidi Heitkamp (N.D.), Joe Donnelly (Ind.) and Claire McCaskill (Mo.). (Rouse didn’t mention Sen. Joe Manchin in his list.)
Presuming the Democratic caucus in the Senate is united against Kavanaugh — which is far from assured — “no” votes from Collins and Murkowski would be enough to sink his nomination in the Senate with Sen. John McCain (R-Ariz.) absent as he battles brain cancer. Collins and Murkowski voted against Trump nominees before, including Education Secretary Betsy DeVos.
But comments from Collins and Murkowksi after Trump made his announcement indicate they aren’t inclined to oppose Kavanaugh. In fact, the two Republicans have suggested they’re warming to the nominee.
In a statement after Trump announced the Kavanaugh nomination, Collins spoke highly of his credentials.
“Judge Kavanaugh has impressive credentials and extensive experience, having served more than a decade on the D.C. Circuit Court of Appeals,” Collins said. “I will conduct a careful, thorough vetting of the president’s nominee to the Supreme Court, as I have done with the five previous Supreme Court Justices whom I have considered.”
According to Politico, Murkowski drew a distinction Monday between Kavanaugh and the other choices on Trump’s list he could have nominated instead.
“Let’s put it this way: There were some who have been on the list that I would have had a very, very difficult time supporting, just based on what was already publicly known about them,” Murkowski said. “We’re not dealing with that.”
Larry Sabato, a political scientist at the University of Virginia, told the Blade there’s “no question the odds favor Kavanaugh’s confirmation,” but efforts against Kavanaugh might influence him after his confirmation.
“Senators have to understand the costs of voting for Kavanaugh,” Sabato said. “At the least, this will push them to give the most thorough possible vetting to him. Vetting can uncover conflicts of interest that can force an eventual justice to act a bit more cautiously on the court. It doesn’t work in every case but this technique can beat fruit.”
Even if the Kavanaugh nomination were defeated, the fight would be far from over. Trump would be still be free to nominate justices to the Supreme Court from his list for his remaining two-and-a-half years (or six-and-a-half years) in office. Progressive groups would have to continually defeat the nominations, many of them with more explicit anti-LGBT records than Kavanaugh.
Rouse said the key to victory is not only defeat of Kavanaugh, but progressive victories during the upcoming congressional mid-term elections.
“If we are successful in defeating Judge Kavanaugh, then…everything really focuses on November, and these are so very important because we really do need to try to change Congress,” Rouse said. “And if we do change Congress, then the whole ball game changes.”
If Democrats take control of the Senate, Democratic leader Sen. Charles Schumer (D-N.Y.) could put a hold on Trump’s Supreme Court nominees, much like McConnell put a hold on former President Obama’s nomination of Merrick Garland to the Supreme Court during the final year of the previous administration.
The effort to defeat Kavanaugh, Rouse said, is just one part of the plan to halt Trump and his ability to appoint his picks to the federal judiciary.
“It’s mobilizing right now against Kavanaugh, being as targeted as strategic as possible and inundating senators with calls non-stop and then focusing like a laser beam on those mid-term elections for us to be successful in putting an emergency brake on Trump and Pence,” Rouse said.