Kavanaugh: Why the Right’s Choice Is the Wrong Decision
Justice must be driven by the best interests of the many, not the privileged few.
By Ron Stubblefield
In Federalist 51, James Madison famously opined that “Ambition must be made to counteract ambition.”
The idea is that you give each branch of government the Constitutional means to protect themselves from encroachment by the other branches of government while providing the members of each branch the personal motive to resist the attempted overreach by other branches. In turn, you can avoid the plague of unfettered government power that only leads to the derailment of personal liberties and the existence of a government that is truly by and for the people. In the context of the judiciary, the Constitutional hope is that an independent judiciary would be created because of an appointment process requiring the negotiation of the competing interest of the executive and legislative branches of government that would not allow either to politically manipulate the court.
We are in the midst of a Constitutional crisis. At this very moment, there are outstanding Constitutional questions that the Supreme Court may very well have to decide regarding President Trump (be it the Mueller Probe, The Foundation, or Stormy Daniels). I think it is clear to most that a person should not be their own judge and jury in a case. Why? Because they will always put themselves above the law. This is even more dangerous with a President who thinks he is above the law and beyond reproach. This is the precise reason why a system of checks and balances is necessary.
However, when you have a Congress led by those that are unwilling to hold the President accountable to protect the rights of people, just as they have failed to protect healthcare, children, women, minorities, LGBTQ+, the environment, education, and affordable housing, this system breaks down. The last remaining check on Presidential Power then becomes vested in the Supreme Court of the United States (SCOTUS). When the democratic process allows for the will of the elected democratic majority to trifle with the rights and protections of the minority then you need a separate forum and process to protect that minority. This process is called Constitutional Law; the nation’s courts are the forum, with SCOTUS being the ultimate. But when SCOTUS is politically manipulated to suit the political ends of a few at the expense of liberty and justice for all, then the legitimacy of government and the welfare of its citizens is in peril.
And this is why the Kavanaugh appointment is dangerous. In 2009, Kavanaugh wrote:
“[T]he nation certainly would have been better off if President Clinton could have focused on Osama Bin Laden without being distracted by the Paula Jones sexual harassment case and its criminal-investigation offshoots.”
He followed this up by suggesting Congress should pass a statute that would not allow the President to be sued, indicted, tried, investigated or even questioned by prosecutors while in office. Yes, he suggested shielding the President from accountability.
This speaks to a broader issue with his philosophy of jurisprudence. Kavanaugh promotes the expansion of Presidential power at the expense of Congressional power as evidenced by his recent dissent in a case regarding the structure of the Consumer Finance Protection Bureau (CFPB). As background, Federal Agencies are created by Congress. At times, Congress moves to create independent agencies. By independent, it is meant the leadership of these agencies cannot be fired by President at will; rather, the President must be able to show an enumerated cause justifying that person’s removal from office. 12 U.S.C. § 5491(c)(3) (for the purpose of the CFPB, these causes being, “inefficiency, neglect of duty, or malfeasance in office”) Why would Congress do this? In the context of the CFPB and other agencies created to regulate interstate commerce, it is to protect the nation’s economy from manipulation and self-dealing by political incumbents, such as a President, that the Supreme Court has recognized as vital and Constitutional. See, Humphrey’s Executor v. United States, 295 U.S. 602 (1935).
Despite this, Kavanaugh, as evidenced in his dissent in this case regarding the CFPB, would jettison the CFPB and other independent agencies on the sole ground it provides a for-cause check on Presidential firing power as opposed to granting the President at-will termination power as a “unitary executive.” Kavanaugh is a promoter of the unitary power of the President, which comes at the expense of Congressional power and the will of the people. And while he is correct that the President is the only one vested with executive power to ensure the laws are executed, it is Congress that makes law and they have the power to curtail abuses of power by the President through said law. He seems to ignore that, all while promoting the unwarranted encroachment and expansion of Presidential power at a time we need to curb and check it.
And when you couple all this with his 12 year judicial track record consistently ruling against civil, workers’, consumers’ and women’s rights, such as his dissent from allowing an undocumented immigrant minor the right to an abortion or his dissent from a decision not to rehear a case regarding the Affordable Care Act’s contraception requirement so that we can allow private religious entities to make public health decisions, Kavanaugh is not the type of person who should be given life tenure on the Supreme Court.
This is not a knock to his talent or brilliance. On the contrary, he is a very brilliant man and a prolific writer. In addition to the concerns outlined above, this is a knock to his judicial philosophy as an originalist and the role of the judge at the SCOTUS level.
First, originalism is predicated on the existence of an understood and unanimous original intent of the founders and that we must be bound to it. This leads to the following questions: Which founders-the ones who drafted the Constitution, or the original people who subsequently ratified it? And how should we feel about an originalist interpretation that excluded and subjugated women and minorities without the very due process of democracy and law? Or, if it is based on writings, why should we presume the most articulate writers captured that original intent completely and faithfully? And couldn’t the founders, assuming we successfully identify which ones we mean for the purpose of originalism, views on said Constitution evolved over time based on seeing how it worked? Then at what point in time best captures original intent for the purpose of jurisprudence?
Certainly, initial judicial rulings on the Constitution made judgments based on Constitutional purpose, but not original intent. As such, why are we now binding ourselves in a manner that was not originally done? And if we are to presume an originalist view could exist, then we must take heed to the fact there were disagreements about what was meant about the Constitution at that time. So who and how do we decide which founders were more original than others in light of this disagreement? And in determining the answers to these questions, aren’t we just choosing which views from the founding we want to impose now based on our value judgments and political wills held today that were not necessarily in place then?
And if so, is this really originalist or is cherry picking original writings to give our views the veneer legal and intellectual justification in the modern day ? Then, surely, originalism must be based on a contradiction, and thus is an unworkable framework for just jurisprudence. However, it is a powerful framework for a conservative, right-wing, political agenda that has impacted the courts over the past few decades-at the expenses of civil liberties and human rights.
The Constitution is a governance framework predicated on the purpose of democracy with limits and controls to protect individual liberty and the existence of democratic and due process. But it should never be seen as a bar to the advancement of a more just and perfect union at the hands of the few at the expense of the many. To quote Thomas Jefferson, “..laws and institutions must go hand in hand with the progress of the human mind.” The law and Constitution are simply social institutions predicated on the collective will of we the people. As such, both should be a governing framework by which we make progress, and not a bar to the advancement of a nation via a doctrine of originalism that suffers from a failure of basic assumption and imposition of undemocratically set traditions over a greater tradition of perfecting a more perfect union via a democratic process with checks and balances.
Second, his understanding of the role of a judge is also flawed. Contrary to assertions by him that the role of the judge is to interpret, and not make law, the fact is when a case reaches SCOTUS, they are being asked to make law. This is because for a question of law to reach SCOTUS, the law has to be so ambiguous and leave too many open-ended questions that people have no idea what the law is or its implications. The decisions made by SCOTUS become the new law of the land. So then the distinction between the interpretation and making of law is one of very little practical importance. They are one in the same. The semantics of word choice should not allow us to get caught up in what Freud noted as the “narcissism of small differences.” This is all more vital given we are at a time where the magnanimity of our nation’s future is at stake. Further, much of the legal test for interpreting statutes and evaluating their Constitutional validity is rooted in a “reasonableness” analysis based on legal purpose and collective public welfare (many of these tests Kavanuagh rejects for a more originalist viewpoint).
When you have a SCOTUS nominee who is more concerned with placing the sophistry of originalism, inequity of tradition, and expansion of “unitary power” above the nobility of reason, wisdom of purpose, and the primacy of we the people this Constitution is for, then we have a morally hazardous nominee BNC cannot and will not support. Neither will we support those who back his nomination.
So how do we stop this? Remember that ambition Madison talked about? The President is free to nominate whoever they want for the job. However, that person cannot be appointed to the role, as a matter of Constitutional law, without the advice and consent of the Senate. No matter how noble one’s intentions are in Congress, there is always the self-preserving motivation to be re-elected into office that guides a member’s decision-making.
So the question is not how to stop a Kavanaugh appointment; the question is are we willing to get loud and active enough to show every Senator that a vote to confirm Kavanaugh is a decision to end their Congressional career? The burden is on we the people to make this clear. Then, and only then, will the ambition Madison spoke of check Presidential power by denying him the ability to bring on an ally to expand it at our expense.
Ron Stubblefield is an attorney licensed with the state of Maryland. His career is focused on economic development. He volunteers with Brand New Congress by contributing to platform and policy development and commenting on the issues that matter to voters.
