The Sobering Prospect Of Kavanaugh’s Confirmation And What It Means For The Rights Of Women And People Of Color.
It’s time to stop protecting the powerful to the detriment of others.
The prospective testimony of Judge Brett Kavanaugh and Dr. Christine Blasey Ford may be our best chance yet at a democratic process in the nomination of Judge Kavanaugh to the Supreme Court. To date, Senate Republicans have tried to railroad through his confirmation, withholding an unprecedented number of documents from the committee and the public. Their cries of urgency ring hollow, as they blocked President Barack Obama’s nominee Merrick Garland from receiving any proceedings for 10 months. But even with the efforts to obscure the nominee’s record, we know what Judge Kavanaugh believes, whose rights he will protect, and the harm that will ensue if he is confirmed.
Judge Kavanaugh’s world experience is one of privileged, bad behavior. It is no surprise that his record is one of protecting the powerful to the detriment of people of color, women, and low-income people.
Recently, details about his time at the elite Georgetown Prep school in Bethesda, Maryland have come to the fore. The description Dr. Ford provided of Kavanaugh’s assault of her when both were in high school gives voice to memories and fears that many women hold at bay. At a small party, a 17-year-old Kavanaugh is said to have forced himself onto then 15-year old Christine Blasey in a locked bedroom, with his friend Mark Judge looking on. When she attempted to scream, she said Kavanaugh covered her mouth with enough force that she wondered if he might accidentally kill her. These details are supported by the 2012 notes of her therapist and are consistent with the picture painted by Wasted: Tales of a Gen X Drunk, Mark Judge’s memoir.
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Judge Kavanaugh invoked his Bethesda upbringing during his confirmation hearing to claim that as someone who grew up in the Washington, D.C. area—which he described at his nomination hearing as “plagued” by gang, gun, and drug violence—he understood and appreciated concerns around gun violence. But while predominantly white, wealthy Bethesda is mere miles from D.C., it is also a world apart: a fact that shows up in Kavanaugh’s D.C. Circuit Court opinions describing predominantly black D.C. neighborhoods in the type of coded, dog-whistle language that has been used to justify racial profiling. As a Bush White House aide, Kavanaugh himself “grapple[d]” with using racial profiling for “security” measures post-9/11, as emails released at the hearing demonstrate.
Kavanaugh’s position on the bench makes him more dangerous than the reported 17-year old Kavanaugh, not less—and he is wrong to assert that “what happens at Georgetown Prep stays at Georgetown Prep.” His attempt to silence Dr. Ford is eerily emblematic of his judicial ideology. He has consistently sided with the more powerful party, often at the expense of the rights of people of color, immigrants, and women.
His dissent last year in Garza v. Hargan advocated blocking “J.D.,” a 17-year old immigrant in government detention who did not have family in the United States, from getting an abortion, to give the government more time to find her a “sponsor”—even though J.D. had already made up her mind and complied with Texas’s cumbersome requirements for getting an abortion, and there had already been a seven-week search for a sponsor for her. Kavanaugh accused the majority of creating “a new right for unlawful immigrant minors in U.S. Government detention to obtain immediate abortion on demand.” But as Circuit Judge Millett explained, the fact that someone enters the country without documentation doesn’t mean that their body is no longer their own. Low-income women of color and immigrant women, who already face greater barriers to accessing reproductive health care, shoulder the brunt of Kavanaugh’s wrongheaded philosophy.
The rot of confirming Kavanaugh as a Supreme Court Justice would run deep. The Court has the power to shape racial equity in the United States, ruling on fundamental questions like whose voices count in our democracy, whose communities are kept safe, and who has access to affordable health care or a workplace free from discrimination. On these and every other racial equity issue that Demos examines in its extensive report, Judge Kavanaugh’s record is deeply concerning. He has belittled the rights of Native Hawaiians and insisted that “we are one race here…American”—erasing generations of colonization and white supremacy. He has ignored the lives lost in Hurricane Katrina when emergency alerts were broadcast only in English. He has repeatedly deferred to law enforcement officers, even those who are dishonest in affidavits and who exceed their constitutional authority to conduct searches.
Moreover, while Kavanaugh insisted he respects precedent during his first nomination hearings for the federal bench, his record demonstrates otherwise. He has written and joined radical opinions addressing issues that were unnecessary to decide the case—and sometimes, that were not even raised by the parties—to promote legal theories that exacerbate rather than ameliorate inequality. Moreover, if elevated to the Supreme Court, there would be nothing that could stop him from overruling precedent, be it Roe v. Wade, which he now dubiously describes as “settled,” or decisions upholding key civil rights statutes.
Elevating Kavanaugh to the Supreme Court would lock in a solid conservative majority, which will be able to set new precedent that strips the rights of people of color, women, working people, and others to be free from discrimination, and broadens the protections guaranteed to moneyed interests, concentrating power further. The prospect alone is sobering.
Allie Boldt, Demos Counsel and Connie Razza, Demos Vice President, Policy and Research