By John Lewis and Stuart Gaffney–
As we discussed in the last issue, the stakes couldn’t be higher when it comes to LGBTIQ rights, women’s rights, affirmative action, gun control, health care, campaign finance regulation, executive power and myriad other issues in the confirmation fight over Donald Trump’s nomination of D.C. Circuit Judge Brett Kavanaugh to the U.S. Supreme Court. In discussing Trump’s extraordinarily disturbing statements regarding his relationship with Vladimir Putin, Maine Senator Susan Collins, a key vote in the Kavanaugh confirmation battle, described Trump’s remarks as a “dizzying … walk back of the walk back of the walk back of the walk back.” It’s time to “walk back” something else: the nomination of Kavanaugh. Collins and her fellow Senators should not trust the judgment of the “dizzying” President when it comes to our fundamental rights protected by the Constitution.
Americans need to send that message over and over to the handful of Senators who still might be undecided on the nomination. Most observers consider five Senators to be key. In addition to Collins, they are Joe Donnelly of Indiana, Heidi Heitkamp of North Dakota, Joe Manchin of West Virginia and Lisa Murkowski of Alaska. All voted for Trump’s first nominee to the Court, conservative Neil Gorsuch, and Donnelly, Heitkamp and Manchin are in tight re-election contests this fall. Some consider Alabama’s Doug Jones, Missouri’s Claire McCaskill and Kentucky’s Rand Paul as possible swing votes as well.
Collins has stated that she “would not support a nominee who demonstrated hostility to Roe v. Wade.” But that’s not enough. Collins and her fellow Senator need to reject any nominee who does not actively support a woman’s right to choose, marriage equality and other such fundamental personal freedoms the Constitution and U.S. Supreme Court precedent guarantee. So far, Kavanaugh has not done that.
Collins has stated that she will consider Kavanaugh’s “judicial philosophy” in deciding how to vote. Kavanaugh has long described himself as an “originalist,” and many observers say that he is an “ultra” conservative one. At a 2016 engagement at the conservative American Enterprise Institute, Kavanaugh was asked: “Can you think of a case that deserves to be overturned?” He answered with a smirk on his face, “Yes.” And when asked if he would name such as case, he laughed and answered “no.” A few seconds later, he chose to name one: the Supreme Court case upholding the independent counsel statute, which he claimed had already been “effectively overruled.” He declared, “I would put the final nail in,” as he continued to laugh. The moderator then cheered: “Here, here!” We all know who else is cheering today.
Kavanaugh should be as forthcoming about all of the cases he’d like to see overruled so Americans can see what they would get with him and can hold their Senators accountable for their votes. What Kavanaugh has already revealed about his judicial philosophy should make it clear to Collins and her colleagues that they should vote no.
Actual substantive statements from the handful of swing vote Senators are few and far between. In addition to Collins, Rand Paul stated that he is “very worried” about Kavanaugh on the Supreme Court because on the D.C. Circuit “Kavanaugh ruled that national security trumps privacy.” Joe Manchin expressed concern regarding whether or not Kavanaugh supports people with pre-existing conditions having access to health care. But they have been careful not to tip their hand.
Interestingly, President Obama’s nomination of Merrick Garland, whom the Republican Senate leadership refused to give a vote for a record 293 days, was before the Senate for consideration when Kavanaugh spoke at the American Enterprise Institute in 2016. Garland is Chief Judge of the D.C. Circuit Court upon which Kavanaugh currently sits. Kavanaugh described Garland as “a brilliant jurist,” who “is supremely qualified by the objective characteristics of experience, temperament, writing ability, scholarly ability for the Supreme Court … . He’s been a role model to me in how he goes about his job.” And Kavanaugh said, with respect to Garland, that he would “leave” the role “of judicial philosophy and direction of the Court to the Senate and the President” in the nomination and confirmation process.
Garland was more qualified to be on the Supreme Court than Kavanaugh by “objective” standards. Clearly, politics prevented Garland from joining the Court. It’s time for the handful group of key Senators to show the nation what they are made of and what they truly value. It’s time for all of us to tell those Senators the same, over and over again. The contact information is as follows:
Susan Collins, Maine: 202-224-2523
http://www.collins.senate.gov/contact
Joe Donnelly, Indiana: 202-224-4814
https://www.donnelly.senate.gov/contact/email-joe
Heidi Heitkamp, North Dakota: 202-224-2043
http://www.heitkamp.senate.gov/public/index.cfm/contact
Joe Manchin, West Virginia: 202-224-3954
http://www.manchin.senate.gov/public/index.cfm/contact-form
Lisa Murkowski, Alaska: 202-224-6665
https://www.murkowski.senate.gov/public/index.cfm/contact
Rand Paul, Kentucky: 202-224-4343
https://www.paul.senate.gov/connect/email-rand
Doug Jones, Alabama: 202-224-4124
https://www.jones.senate.gov/content/contact-senator
Claire McCaskill, Missouri: 202-224-6154
http://www.mccaskill.senate.gov/contact
Stuart Gaffney and John Lewis, together for over three decades, were plaintiffs in the California case for equal marriage rights decided by the California Supreme Court in 2008. Their leadership in the grassroots organization Marriage Equality USA contributed in 2015 to making same-sex marriage legal nationwide.
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