Supreme Court Nominee Brett Kavanaugh: To Deepen the ‘Imperial Presidency’
US Senate Judiciary Committee hearings on Trump’s Supreme Court pick Brett Kavanaugh began on Tuesday. We discuss his nomination and the hearings and how they will affect executive power, abortion, and international law with Marjorie Cohn
GREG WILPERT: It’s The Real News Network, and I’m Greg Wilpert coming to you from Baltimore.
Senate hearings on Trump’s second Supreme Court nominee Brett Kavanaugh began on Tuesday. So far the hearings consisted mostly of opening statements. However, protests against the hearings, both from audience members and from Democratic senators, began almost immediately.
The Women’s March took credit for having organized the protest against Kavanaugh, mainly because of his documented opposition to women’s right to have an abortion. However, Democrats on the Judiciary Committee also objected to the hearings themselves, and demanded a postponement because they received 42,000 pages of legal documents relating to Cavanaugh’s record only the night before. Here’s what Senator Kamala Harris and Senator Cory Booker had to say.
KAMALA HARRIS: The committee received just last night, less than 15 hours ago, 42,000 pages of documents that we have not had an opportunity to review, or read, or analyze.
CHAIRMAN: You are out of order, I’ll proceed.
KAMALA HARRIS: We cannot possibly move forward, Mr. Chairman, with this hearing. We have not been given an opportunity
I extend a very warm welcome to Judge Kavanaugh, to his wife Ashley, their two daughters, their extended family and friends.
SPEAKER: Mr. Chairman, I agree with my colleauge Senator Harris. Mr. Chairman, we received 42,000 documents that we haven’t been able to review last night, and we believe this hearing should be postponed.
CORY BOOKER: Even the documents you have requested, Mr. Chairman, even the ones that you said, the limited documents you have requested, this committee has not received. And the documents we have, you, sir, [inaudible] should be transparent. This committee, sir, is a violation of even the values I’ve heard you talk about time and time again; the ideals that we should have. What is the rush? What are we trying to hide by not having the documents out front?
GREG WILPERT: Joining me now to discuss the Kavanaugh Supreme Court appointment and the hearings is Marjorie Cohn. She is professor emerita at Thomas Jefferson School of Law, and the former president of the National Lawyers Guild. She also recently wrote an article for the website Truthout on Kavanaugh, titled Kavanaugh Scorns International Law and Loves Executive Power. Thanks for joining us today, Marjorie.
MARJORIE COHN: My pleasure, Greg.
GREG WILPERT: So in the days to come, the hearings are expected to touch on the following issues that Senator Richard Blumenthal mentioned in his opening statement.
RICHARD BLUMENTHAL: And this proceeding could not be more consequential in light of what is at stake: whether women can decide when they want to have children and become pregnant, whether the people of America can decide whom they would like to marry, whether we drink clean water and breathe clean air, whether consumers are protected against a defective product and financial abuses, and whether we have a real system of checks and balances, or alternatively, an imperial presidency.
GREG WILPERT: Let’s take the last issue first, the issue of the imperial presidency, since this is also what your article touched on. In what ways has Kavanaugh shown his love for executive power?
MARJORIE COHN: Kavanaugh has said that we should reconsider U.S. v. Nixon, which was the unanimously decided Supreme Court decision that said that Nixon had to hand over tapes to the Watergate committee, and that resulted, ultimately, in his resignation. And Kavanaugh has- well, very interesting, a quote from Kavanaugh, is that “The president may,” and I’m quoting now, “may decline to enforce a statute that regulates private individuals when the president deems this statute unconstitutional, even if a court has held or the court would hold the statute constitutional.” That puts the president squarely above the law. And the Constitution gives only Congress the power to make the law, and gives the president the duty to carry out the law or enforce the law. So by saying, by Kavanaugh saying that a president has a right to ignore a statute that has been passed by Congress if the president, if Trump thinks something’s unconstitutional, creates a state of fascism where the president is the only branch of government, with Congress being irrelevant and the court deferring to the president, which is very, very frightening.
So in the hearings themselves, that issue also came up. Just give us a quick idea as to how it came up, and what did they have to say about it?
MARJORIE COHN: Well, one of the- this relates to the failure to turn over all the documentation. And yes, part of it, part of the objection of the Democrats- who, by the way, were exemplary in standing firm and trying to get all the information, because it’s been unprecedented the way there’s been a sanitization of these documents. It wasn’t just about the 42,000 pages that were laid on them last night, the night before the hearing, but also they have not received about 97 percent of the documentation relating to Kavanaugh. And in particular, for three years, from 2006-2009, he was staff secretary in the Bush White House when torture and surveillance and detention and many of these very, very critical issues were discussed. And yet this is a total blank.
After the photos from Abu Ghraib became public, John McCain, who was, of course, you know, tortured in Vietnam, attached a an amendment to the Detainee Treatment Act outlawing cruel, inhuman, or degrading treatment. Which was already against the law, but reiterating that. And Bush signed the Detainee Treatment Act, but attached a signing statement, saying that I’m going we’re going to follow the parts of this law I agree with. And Kavanagh was squarely in the middle of helping to prepare that signing statement. So here we- and we have during the war on terror cases Kavanaugh, as a judge on the Court of Appeals, in almost every case deferring to the president in deciding whether detainees who were unlawfully held, and if they were sent back to their home might be tortured, deferring to the president in issues of detention, habeas corpus. Blindly deferring to the executive. And this is very, very worrisome. A president such as Trump can say we’re at war, even if Congress hasn’t authorized it, and Kavanaugh would put his rubber stamp on it.
GREG WILPERT: Actually, this brings me to the next issue, which is the issue of international law. Which I haven’t seen mentioned that much yet, except of course in your article. In what way does this issue of international law relate to the issues that you’re talking about? And should we be, or should the Democrats be paying more attention to this?
MARJORIE COHN: I think they should, quite frankly, Greg. Because our laws clearly outlaw torture. The Convention Against Torture, which is which is a treaty the U.S. has ratified, making it part of U.S. law under the Supremacy Clause that says treaties shall be the supreme law of the land, and the Torture Statute, and the War Crimes Statute, which classifies torture as a war crime, outlaw torture. And yet if Trump decides- and Trump has said he wants to torture. He wants to bring back waterboarding and worse. Waterboarding is clearly a form of torture. The United States tried, convicted, and hung Japanese military leaders after World War II for waterboarding as torture, which is a war crime.
So I think it’s very important that the Democrats understand and question Kavanaugh about his statements about international law and how international law is irrelevant, even though it’s part of our law under the Supremacy Clause. And Kavanaugh confuses international law with foreign law. International law are the treaties we’ve ratified and customary international law, such as the prohibition against torture. Foreign law is the law of France, the law of Germany, the law of Egypt. And yet he confuses the two. Of course we’re not bound by foreign law, the laws of other countries. But we are bound by international law insofar as it has been incorporated into our law. And he has had nothing but disdain for international law, Kavanagh.
GREG WILPERT: Seems amazing a judge could confuse these issues. But I want to turn to another one that was mentioned in the opening statements during the hearings, which was whether or not Kavanaugh might favor overturning Roe v. Wade, the 1973 Supreme Court ruling that established a woman’s right to choose an abortion. What do we know about Kavanagh’s position on this issue?
MARJORIE COHN: Well, in 2017, Kavanaugh stopped a lower court order that had approved a 17-year-old girl who was in immigration custody, had approved an abortion for her. And the abortion was not going to be paid for by the government. There were private parties that had come forward to arrange the whole thing. And the whole court reversed Kavanagh’s decision. And Kavanaugh dissented to that whole court decision, and talked about abortion on demand. Three times he decried abortion on demand. This was not abortion on demand. This issue had been vetted very thoroughly by many different people. And Kavanaugh wrote that the government has an interest in favoring fetal life, and not facilitating abortion. And those are the buzzwords for outlawing abortion.
Now, Kavanaugh, I think there’s no doubt that he would be the fifth vote to overturn Roe v. Wade. And if that didn’t happen, Chief Justice Roberts likes to incrementally chip away at rights, even if they aren’t totally overruled. And I think we can safely assume that Kavanaugh- not safely assume, but assume- that Kavanaugh would be, would vote with the majority in chipping away at the right to abortion, at reproductive rights.
GREG WILPERT: Finally, what other issues do you think Senate Democrats ought to be questioning Kavanaugh on?
MARJORIE COHN: I think they should question Kavanaugh about his record in environmental protection cases, where in 13 cases that came before him he sided with the polluters in 11 cases. They should be talking about money in politics, where he was asked by the right wing American Enterprise Institute if money spent in campaigns is a, is a First Amendment right, and he said yes, and he has ruled that way. I think that they should be talking about voting rights, where Kavanaugh upheld voter ID laws, even though the Obama administration said that they voted- they violated the Voting Rights Act. Voter ID laws make it harder for people of color to vote.
And I think that they should be talking about his entire record, which I think almost without exception mitigates in favor of big money interests, of money in politics, of anti-labor issues, voting against workers. In every opportunity he has, he has ruled for the big guys against the little guys. And I think that there’s no doubt that he would provide the fifth vote on the Supreme Court to move the court for decades radically to the right. And we have five swing voters, two Republicans, and three Democrats who hold the fate of this, of the Supreme Court for many decades to come, in their hands. And I’m hoping that this very strong showing by the Democrats on the Senate Judiciary Committee and the strong showing by the protesters outside will appeal to their conscience, and they will vote not to confirm him, although I have my doubts.
GREG WILPERT: Okay. Well, we’ll continue to follow this very carefully, and hopefully we’ll have you on again. I was speaking to Marjorie Cohn, professor emerita at Thomas Jefferson School of Law and former president of the National Lawyers Guild. Thanks, Marjorie, for having joined us today.
MARJORIE COHN: Thank you, Greg.
GREG WILPERT: And thank you for joining The Real News Network.