Kavanaugh’s Appointment to the Supreme Court: Tipping the Balance
Kristen Clarke head of the Lawyers’ Committee for Civil Rights Under Law talks about the consequences for the nation’s future if Brett Kavanaugh is put on the Supreme Court
MARC STEINER: Welcome to The Real News Network. I’m Marc Steiner. Good to have you with us.
The Supreme Court holds one of the mightiest keys in our country to guarantee justice, an environment we can live in, air we can breathe. They can guarantee voting rights, and ending centuries of what discrimination, segregation, and slavery has wrought on this land. From the 1950s to the ’70s, the Supreme Court was, as now-Congressman, then-SNCC leader John Lewis put it, a sympathetic referee. All the rights so many of us fought for are now in jeopardy, since the time Senate leader McConnell blocked Obama’s last appointment to the Supreme Court, to Trump’s nomination of Brett Kavanaugh, a man who opposed voting rights, environmental protection, and through his writings supports the notion of an imperial presidency.
Joining us today is one of America’s leading civil rights attorneys and leaders, Kristen Clarke, who is president and executive director of the Lawyers Committee for Civil Rights Under Law. And Kristen Clarke, welcome to The Real News Network. Good to have you with us.
KRISTEN CLARKE: Thanks so much for having me.
MARC STEINER: So I don’t think that I was kind of speaking as an alarmist when I said that many of the things that have been fought for over the years around civil rights, environmental protection, protection of workers rights, many other things are are really in jeopardy with this nomination if this goes through.
KRISTEN CLARKE: Indeed. The Supreme Court is the last frontier for so many of the critical battles that play out for our country when it comes to protecting the civil rights of vulnerable communities. That has been the case since Brown v. Board of Education. But for a Supreme Court ruling to breathe life into the text of the Constitution, we might still be living in a world where segregated schools was the law of the land. We don’t- as civil rights lawyers we don’t go to the Supreme Court expecting to win every time, but we expect to find a fair and impartial venue where we can fight our issues, where we can argue what the law requires, where we can present the facts and have a fair shot.
Now, Justice Kennedy was no friend on civil rights issues. But in 30, 40 percent of cases he did take bold and courageous action that helped to protect affirmative action, that helped to advance LGBT rights, that helped protect the Fair Housing Act, among other things. So what stands at risk here is having that fair, impartial court, for me, as a civil rights lawyer, where we can have a fair shot. We know that civil rights issues are not going away. In fact, with this administration we can expect that battles over issues like the Muslim ban and DACA will continue in years to come. Right now there’s a huge case unfolding around the census, 2020, and the administration’s eleventh hour decision to add a citizenship question to the census. These cases are all slowly winding their way up to the Supreme Court, and that’s what hangs in the balance with this current nomination.
Judge Brett Kavanaugh is somebody who will transform the court for generations to come if confirmed, and we know that based on his record in the D.C. Circuit and based on his record prior to joining the bench. He’s somebody who is very much aligned with Clarence Thomas, and would really politicize the court in ways that could prove harmful for communities for generations to come.
MARC STEINER: When you look at the history of the court, in some ways the era of the Warren Court from the ’50s to the ’70s, the courts in that period were almost anomalies in American judicial history. I mean, what do you think of the dangers that we could reverse everything that was advanced from the ’30s to the ’70s, let’s say, that goes back to an era when segregation was legal? When- and I keep thinking about the period in American history of 1877 to the 1890s, when Reconstruction was destroyed, when legal segregation was instituted across this country. And when you saw this huge conservative takeback. So in some ways we’re facing, it seems to me, a very similar threat to everything that’s happened before. Am I making too much of this? And if I am, please tell me I am. And if I’m not, tell me what you think has to be done.
KRISTEN CLARKE: You’re not making too much of this. The stakes are incredibly high. Right now we have an executive branch, a White House, that really is taking astounding and remarkable action to turn the clock back on civil rights, on constitutional rights. We have a Congress that is incredibly politicized to the point where things get jammed up and there isn’t a lot of movement on things where you’d expect movement, like criminal justice reform, which had a whole lot of bipartisan support until we moved into this hyperpartisan era.
So we can’t afford for that to happen to the Supreme Court. That is the third branch of government that should be part of the system of checks and balances, and it matters especially now when we have an executive branch that is wielding and using and sometimes abusing its powers in ways that should be checked. The Supreme Court is that kind of final frontier that can act as a check on the other branches of government. It’s really important that the public pay attention to this nomination and speak up. Some things that people can do right now, today, is call the Senate, call Chairman Grassley, and tell him to stop racing forward with this nomination hearing that he has scheduled for September 4. What’s remarkable is he’s put a hearing date on the calendar. It’s about three weeks away. And we still don’t have all of the records from Brett Kavanaugh’s time at the White House. He spent several years there working shoulder to shoulder with President Bush, where he touched incredibly important issues ranging, from torture, ranging from executive power, ranging from civil rights issues like hate crimes. We need to understand who he is, and disclosure of those documents is key.
The National Archives has responded to our request for preliminary documents that they say they can’t fill before the end of October. How is it that Chairman Grassley could attempt to move forward with hearings right now? The public should speak out about this. If and when hearings happen, we need to have the full benefit of information and records that show who Brett Kavanaugh really is.
MARC STEINER: From what I’ve read, there are well over a million documents from the White House that have yet to be seen, among other- is that correct?
KRISTEN CLARKE: That’s right. And they put out a smattering of records on Friday. They released some records. Half of the documents, virtually half of the documents, were from Justice Clarence Thomas’ wife, and pertain to various Heritage Foundation events. This adds no value in the public’s effort and in the Senate’s important task of providing advice and consent as the Constitution requires, and really leaving no stone unturned in understanding who Brett Kavanaugh is. I want to know, what are the hiding? Why are they racing forward with these nomination hearings prematurely, and why are they living up to the same standard that they’ve imposed on other Supreme Court nominees like Justice Kagan and Justice Sotomayor? Chairman Grassley insisted on disclosure of every document held at the Clinton library that pertained to Justice Kagan’s time in government, and every single document was turned over. They insisted with Justice Sotomayor, they went even further, and said they wanted minutes from meetings held by a civil rights organization where Justice Sotomayor sat on the board.
There is a double standard here. We’ve seen in years past Chairman Grassley insist on full disclosure, on transparency, on, you know, all of the documents being put on the table, laying out all the cards on the table. And for some reason, they’re racing forward with this at lightning speed. I think the public should be deeply skeptical about what’s happening here, and question what are they hiding.
MARC STEINER: So given the political realities of America at this moment, do you think that that kind of push for talking about from citizenry could have an effect with this before the next election?
KRISTEN CLARKE: I sure hope so. The power lies with the people at the end of the day, and we need to hold our elected officials accountable. Right now the Senate has a huge undertaking in front of them. There is no responsibility or power more important than putting a lifetime appointee on the Supreme Court. And it is their job to carefully evaluate that nominee to make sure that they are qualified and can reach, meet the highest standards and ideals that you want in a small body like our nation’s Supreme Court. People do have power here. Calling 202-224-3121 and insisting on a process that is A) transparent and B) informed, one in which there is full disclosure of all the documents and materials that reveal who Brett Kavanaugh is, is bare minimum, the bare minimum of what the public deserves here. So I hope that the public will reach out and not sit back. And again, there are too many civil rights cases in the pipeline for people to stay on the sidelines of this incredibly important battle.
MARC STEINER: So before you have to run, and we look forward to having more discussions with you around this issue, which is really critically important, with you and other leaders as you, like you. What are some of the issues in the pipeline that you’re deeply concerned about that could be before a court that would turn them away and turn them over?
KRISTEN CLARKE: Well, as a civil rights lawyer, let me point out one case that came before Brett Kavanaugh that I think speaks powerfully to who he is. It’s a case concerning an EPA rule that was put in place to deal with the problem of pollution that crosses state boundary lines. And the EPA put this rule in place after lots of careful study and examination. They found that it would help to prevent premature death, that it would help save lives and advance the public health. And Brett Cavanaugh wrote a ruling finding that the EPA rule was unconstitutional. The Supreme Court reversed Brett Kavanagh on a margin of 6-2. Both Roberts and Kennedy were in the majority. And in the minority was Justice Thomas.
And I think that this case speaks very powerfully to the fact that if Kavanaugh were put on the Supreme Court we can expect another Clarence Thomas, another Justice Clarence Thomas, somebody who would tilt the balance of the court to the far right. This is Brett Kavanaugh putting industry over the interests of people. This is Brett Kavanaugh not willing to give deference to the careful judgment of federal agencies charged with things like protecting public health and advancing environmental justice. It’s a case that really speaks powerfully to who he is and his judicial philosophy. And I am very concerned that he’s somebody who would transform the court in ways that could prove really harmful for our democracy.
MARC STEINER: Kristen Clarke, we appreciate you taking the time. I know you have a busy day. We look forward to more conversations between now and September 4 with you and others as we keep the pressure on and continue this conversation and dialogue with all of our viewers. Thank you so much for joining us today.
KRISTEN CLARKE: Thank you so much for having me.
MARC STEINER: My pleasure. Thank you.
And I’m Mark Steiner here for The Real News Network. Thanks for watching, thanks for being with us. Take care.