The judicial history of Supreme Court nominee Brett Kavanaugh suggests that he would put corporate profits over individual rights and public safety.
Public Citizen studied the judge's decisions during his 12 years on the U.S. Court of Appeals in the District of Columbia. The organization reported that in 87 percent of cases that pitted businesses against people, Kavanaugh ruled in favor of corporate power. The 100 cases that Public Citizen analyzed involved consumer issues, business regulations, environmental concerns, workers' rights, police brutality and antitrust laws.
“The most eye-catching conclusion from reviewing Judge Kavanaugh's opinions on the appellate court is the consistency of the outcomes compared to the inconsistency of his reasoning,” said Public Citizen's Robert Weissman, who cited the nominee's “overwhelming tendency to reach conclusions favorable to corporations and against the public interest.”
When forced to decide between businesses and government regulators, Kavanaugh has routinely sided with the profit interests. Public Citizen wrote that the judge “imposes high bars to citizen access to the courts, but treats corporations differently,” “opposes independent agencies,” and is “highly skeptical of civil-rights claims.”
Regarding environmental protections and labor laws, “Kavanaugh's opinions demonstrate a very clear and consistent pattern of strong deference to agency decisions challenged by public-interest groups or individuals, and no deference — and sometimes hostility — to agency actions challenged by corporations,” the nonprofit group's report stated.
In one case, Kavanaugh challenged the Federal Communications Commission's decision to issue emergency alerts in multiple languages. Another judge on the circuit court disagreed, pointing out that “Hurricane Katrina laid bare the tragic consequences of that gap when people's lives were lost because they could not understand the warnings.”
In suits featuring complaints against the FCC by cable companies and internet service providers, concerning net-neutrality guarantees and other matters, Kavanaugh accepted the companies' arguments over those of government regulators.
Such opinions “suggest, at a minimum, that his understanding of the First Amendment rights of cable companies and ISPs … may meaningfully constrain the ability of the FCC and other agencies to adopt fair rules of the road, at the potential expense of less powerful market competitors, innovation and, crucially, the public,” according to Public Citizen.
Kavanaugh has criticized the high court's tendency to accept federal officials' arguments in cases concerning consumer and environmental protections. He believes the practice is unfair to industries, including those that pollute the air and water. Kavanaugh has often accused the Environmental Protection Agency of exercising too much power in regulating greenhouse gas emissions.
If the Senate confirms the nomination, the court would be more likely to roll back health, safety, and environmental regulations, Mother Jones magazine warned.
Common Dreams noted that much of the organized opposition to Kavanaugh's nomination is focused on civil and human rights. Thousands of people worried about the erosion such rights have joined the #StopKavanaugh movement, attending numerous public demonstrations across the country. The judge's confirmation hearings are scheduled to begin in the Senate on Sept. 4.
Since former President George W. Bush named Kavanaugh to the D.C. Circuit Court of Appeals in 2006, the judge has made decisions in more than 1,000 cases. That will give senators plenty of evidence to assess as they consider Trump's second Supreme Court nominee.
Democrats hope to persuade two moderate Republicans, possibly Sen. Susan Collins of Maine and Sen. Lisa Murkowski of Alaska, to join them in voting against Kavanaugh. That would give them enough votes to reject the nominee.
Senators are sure to ask Kavanaugh about his position on Roe v. Wade, the 1973 Supreme Court decision that legalized abortion. After a recent meeting with the judge, Collins told reporters: “We talked about whether he considered Roe to be settled law. He said that he agreed with what Justice Roberts said at his nomination hearing, in which he said it was settled law.”
However, no one expects Kavanaugh to reveal how he would vote on an attempt to repeal Roe. “Both sides (Republicans and Democrats) tend to be concerned about the results of cases, and that’s precisely the kind of question nominees cannot and ought not answer,” Randy Barnett, a professor at the Georgetown University Law Center, said in a Quartz interview. “You don’t want nominees to commit to outcomes. Senators should be asking about clauses of the Constitution, not the cases.”
Kavanaugh's political leanings are well known. He served as Bush's staff secretary from 2003-06, and was the lead author of the Starr Report that demanded former President Bill Clinton's impeachment. During the scandalous 2000 presidential election recount in Florida that resulted in the Supreme Court deciding Bush had defeated Al Gore, Kavanaugh represented the Republican candidate.
The already conservative Supreme Court is certain to become even more right-wing if Kavanaugh wins his nomination fight. That will give President Trump a better chance of enacting major parts of his policy agenda, like further limits on immigration.