Is it worth fighting Brett Kavanaugh? Let’s start here: Don’t assume Judge Kavanaugh’s confirmation is a done deal. Since 1968, seven Supreme Court nominees from both parties—representing 35 percent of the open seats—have failed. Those are pretty interesting odds, especially in a Senate that may change hands in January. Seemingly inevitable Supreme Court nominations fall by the wayside for all kinds of reasons. With Kavanaugh, there’s already the strange story of his running up overwhelming personal debt for baseball tickets, and his sudden bailout by unnamed individuals. A judge that desperate to impress his pals may have other bad habits.
Then there are the Kavanaugh memos—reams of them from his days as staff secretary in the George W. Bush White House post-9/11—that were never disclosed during his first confirmation to the federal bench. Just one Kavanaugh e-mail in defense of torture, rendition, or warrantless surveillance could be enough to send Senator Rand Paul into opposition, or rouse former POW John McCain from his mortal bed for one final “no” vote. Mitch McConnell knows it, which is why the Senate majority leader tried to dissuade the White House from nominating this seemingly safe GOP careerist.
Those memos take on special meaning in the age of Trump, because it is already clear that in the woolly menagerie of conservative jurists, Kavanaugh is of the “strong executive” subspecies—a straight-line descendant of Nixon’s man, William Rehnquist. The late chief justice fetishized the power of the executive branch and was most interested in giving presidents the unilateral authority to wage war, spy on citizens, and incarcerate the poor—all while stripping the federal government of its authority to protect civil rights.
Kavanaugh himself has gone out of his way to discuss his affinity with Rehnquist. In a speech last fall, he called him “my first judicial hero” and went on to praise the chief justice for his stands on “criminal procedure, religion, federalism, unenumerated rights and administrative law.” So it seems important to recall a few things about this particular jurist. From his earliest years as a clerk to Justice Robert Jackson, Rehnquist bitterly opposed the civil-rights movement; he even wrote a notorious memo for Jackson arguing against the decision in Brown v. Board of Education and defending school segregation. In another case, Rehnquist wrote to Jackson: “It is about time the Court faced the fact that the white people of the South do not like the colored people; the Constitution…did not appoint the Court as a sociological watchdog.”
As deputy attorney general in the Nixon White House, Rehnquist penned a white paper defending the president’s secret bombing of Cambodia and proposing a breathtaking expansion of presidential war powers—a memo that, a generation later, Kavanaugh’s colleagues in the Bush White House used as justification for torture. Both on and off the bench, Rehnquist fought the exclusionary rule barring illegally obtained evidence. He supported free speech when it came to school prayer but sided against First Amendment protections in 100 percent of the press-freedom cases that divided the Court. And, of course, as an associate justice and later as chief justice, Rehnquist devoted himself to opposing abortion rights in every case from Roe v. Wade on.
All of this stands in marked contrast to retiring Justice Anthony Kennedy, for whom Kavanaugh once clerked. Kennedy, though a Reagan conservative, was still at times a devoted and humane libertarian: He argued for and voted to extend abortion rights; to restrain the government’s control of sexuality; and to defend the rights of society’s most despised prisoners, such as terrorist detainees and those on death row.
Kavanaugh’s identification with Rehnquist’s maximum-leader jurisprudence is all the more alarming given the Mueller investigation and President Trump’s legal troubles. A lot of attention has been paid to his 2009 Minnesota Law Review article, in which he argued that Congress ought to protect the president from criminal and civil cases while he’s in office. While that alone doesn’t necessarily predict how Kavanaugh would vote should he have to review a subpoena or indictment of the president, taken together with his reverence for Rehnquist, it does suggest that he would cocoon the presidency from accountability, even for serious criminal acts.
There’s been much praise of Judge Kavanaugh from friends with very different politics. But the Senate is confirming a Supreme Court justice, not a Little League coach. However much Kavanaugh prizes civility in his private life, the causes he champions on the bench are about institutionalized incivility. The political brutality of the Trump era is rooted in the Rehnquist right’s decades-long campaign to undo the modern American social contract—New Deal business regulations, civil rights, environmental protections, and sexual equality—and to restore executive power to the days before civil-liberties-minded judges and a post-Watergate Congress reined it in. Kavanaugh’s career-long devotion to strong-arm jurisprudence should stir to opposition anyone, regardless of party, worried by the current authoritarian occupation of the White House.
