OPED: Why Kavanaugh should be ‘borked’

Bobbie Stein
Tribune News Service
Judge Brett Kavanaugh, right, speaks to the crowd after President Donald Trump nominated him to the Supreme Court during a ceremony in the East Room of the White House in Washington, D.C., on July 9, 2018. (Olivier Douliery/Abaca Press/TNS)

Senate Majority Leader Mitch McConnell recently accused Democrats of trying to “bork” Supreme Court nominee, Brett Kavanaugh. Let’s hope that happens.

Robert Bork, who was nominated by President Ronald Reagan to the Supreme Court in 1987, came under intense scrutiny for his “originalist” views, which essentially deny that the Constitution is a living document that must evolve to address contemporary situations. The Senate rejected Bork by the largest margin in history and a new verb was born. In common parlance, to “bork” is to systematically attack or defeat a nominee or candidate for public office.

According to Gallup, Kavanaugh begins his quest for the Supreme Court with a higher level of opposition than for any nominee Gallup has measured since Bork’s nomination. As a Circuit Court judge in Washington, D.C., Kavanaugh struck down EPA protections under the Clean Air Act and ruled against efforts to fight climate change.

Kavanaugh has called the FCC’s net neutrality order, which required all Internet users to be treated equally, an “unlawful” violation of the First Amendment. The revocation of this rule by the Trump administration means some users will claim premium access and shut out competitors.

Hostile to the rights of the accused, Kavanaugh applauded the late former Chief Justice William Rehnquist’s pursuit of expanding exceptions to the exclusionary rule, which is meant to keep illegally obtained evidence out of court. In the area of religion, Kavanaugh again invokes Rehnquist’s ghost, suggesting that he may be open to widening the flow of public funding to religious schools.

As a lawyer at the high-grossing international law firm Kirkland & Ellis, Kavanaugh teamed up with then-lawyer Bork and the Center for Equal Opportunity, a conservative think tank that opposes race-based affirmative action in college admissions, to write an anti-affirmative action brief in an unusual Hawaiian voting rule case.

On abortion, it is clear Kavanaugh meets what Trump said would be his litmus test of only nominating justices who would act to overturn Roe v. Wade. In a 2015 dissent, Kavanaugh argued that Obamacare’s mandate for contraception coverage infringed on the rights of religious organizations. He famously dissented from a decision last fall that permitted an undocumented immigrant teen in federal custody to have an abortion, stressing the government’s “permissible interests in favoring fetal life.”

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Yet perhaps the greatest benefit Trump sees in Kavanaugh’s confirmation is personal, given the ongoing Mueller investigation. Kavanaugh has stated that he does not believe sitting presidents should be indicted or even subject to civil suits. He has even questioned the unanimous U.S. Supreme Court ruling that ordered President Richard Nixon to turn over the Watergate tapes.

What we know about Kavanaugh’s record makes him, like Robert Bork, unsuitable for a lifetime appointment to the Supreme Court. Bork’s nomination was doomed because of the dramatically conservative direction in which he was likely to lead the court. Kavanaugh’s similar ideological leanings should give pause to anyone who is concerned about the court’s future and its role in preserving the hard-fought evolution of civil rights gained in the past 50 years.

Kavanaugh’s confirmation would unquestionably shift the balance of the court and turn the clock back on our rights and liberties for generations to come. Opposing him is not just a political game for the Democrats to play. It is a moral imperative. This is a nomination that deserves to be borked.

— Bobbie Stein, a member of the Board of Governors of California Attorneys for Criminal Justice, is a Bay Area criminal defense and civil rights lawyer. This column was written for the Progressive Media Project, which is run by The Progressive magazine, and distributed by Tribune News Service.