They probably won’t, but they’re sure going to try.
As soon as Trump announced that he would be picking Justice Anthony Kennedy’s replacement, Democrats began gearing up for a fight — with plans to leverage issues like abortion and healthcare as key flash points. Now that Brett Kavanaugh has officially been selected, there are a few specific points of attack that lawmakers are emphasizing about his record, which has included longstanding support for gun freedoms and a unique approach to presidential power.
Although they’ve become activist rallying cries, Kavanaugh’s views on polarizing subjects like Roe v. Wade and the Affordable Care Act are a bit more difficult to parse. Democrats say endorsements from groups like the Heritage Foundation and the Federalist Society are telling enough on their own.
“In selecting Judge Kavanaugh, President Trump did exactly what he said he would do on the campaign trail — nominate someone who will overturn women’s reproductive rights and freedoms and strike down health care protections for millions of Americans, including those with preexisting conditions,” Senate Minority Leader Chuck Schumer (NY) reiterated in a floor speech on Tuesday.
Given Kavanaugh’s extensive paper trail, there are a couple angles lawmakers are taking as they seek to block his nomination. Here are five arguments Democrats are making as they go on the offensive against Kavanaugh.
1) He’s got an expansive view of what the president can do
As Vox’s Andrew Prokop writes, Kavanaugh has argued that presidents should not be distracted from their executive office responsibilities by potential criminal investigations — even if they happen to be the subject of such probes. Trump, is in fact, currently the subject of a special counsel investigation — a rather glaring coincidence in the context of Kavanaugh’s selection.
Here’s Andrew’s rundown of Kavanaugh’s writings on the subject, which focus primarily on what Congress could do:
Kavanaugh wrote in an article for the Minnesota Law Review from 2009 that Congress should pass a law “exempting a President—while in office—from criminal prosecution and investigation, including from questioning by criminal prosecutors or defense counsel.”
“I believe that the President should be excused from some of the burdens of ordinary citizenship while serving in office,” Kavanaugh wrote. “We should not burden a sitting President with civil suits, criminal investigations, or criminal prosecutions.” Furthermore, Kavanaugh opined that the “indictment and trial of a sitting President” would “cripple the federal government.”
Per a report from CNN’s Jim Acosta, Kavanaugh’s views on criminal investigations and the executive office were in fact considered in the Trump team’s review of his candidacy for the nomination.
Trump SCOTUS team has looked at Kavanaugh’s past comments on indicting a sitting president, we’ve confirmed. In 2009, Kavanaugh wrote: “The indictment and trial of a sitting President, moreover, would cripple the federal government…” https://t.co/rDHJs5RiUY
— Jim Acosta (@Acosta) July 9, 2018
Among Democrats, New Jersey Sen. Cory Booker has been among the most vocal on concerns about Kavanaugh’s approach to presidential power — though more and more lawmakers have begun subscribing to this argument, including Schumer.
“Mr. Kavanaugh, is the president above the law?” Schumer asked during a Tuesday press briefing.
Booker reiterated his criticism during the briefing, scoffing at how this decision has shaken out. “The person [Trump has] selected was the only person amidst all of these individuals on his much-talked about list,” he said, “the only person that has clearly stated, ‘Hey, Mr. President, in effect, we will give you immunity. I will be your shield.’”
Booker has been pushing the idea that no Trump nominee should be able to move through the confirmation process as long as the special counsel’s Russia investigation is ongoing. Given the possibility that elements of the investigation could wind up in front of the Supreme Court, Booker has said that Trump’s ability to handpick a justice who favors him could be a massive conflict of interest.
Vermont Sen. Bernie Sanders, in his statement on Monday, expressed qualms about Kavanaugh’s approach to the executive office as well.
“Kavanaugh, contrary to 200 years of Supreme Court precedent, believes a president ‘may decline to enforce a statute … when the president deems the statute unconstitutional,’” Sanders wrote as part of his litany of concerns. “I do not believe a person with those views should be given a lifetime seat on the Supreme Court.”
2) He will overturn Roe v. Wade
Abortion rights are widely perceived as an emotionally charged issue that both galvanizes the Democratic base — and serves as a potential point of common ground with Republican moderates like Sens. Susan Collins (ME) and Lisa Murkowski (AK). The preservation of Roe v. Wade has long been seen as a defining issue in the Supreme Court fight, making it a key part of Democrats’ arsenal as they seek to take Kavanaugh down.
Schumer himself pressed Kavanaugh on abortion rights during the judge’s 2006 confirmation hearing for the DC Circuit, asking if he believed that Roe v. Wade was an “abomination.”
Kavanaugh said he would be committed to following the precedent established by Roe “faithfully and fully,” but declined to offer his personal views on the case. As Schumer indicated in a July New York Times op-ed, he’s skeptical of such commitments to precedent.
Citing the recent Janus ruling, which overturned 41 years of precedent and gutted the power of public-sector unions, Schumer argues that “settled law is only settled until a majority of the Supreme Court decides it is not.”
.@SenSchumer: “Do you consider Roe v. Wade to be an abomination?”
Brett Kavanaugh: “If confirmed to the D.C. Circuit, I would follow Roe v. Wade faithfully and fully. That would be binding precedent of the Court. It’s been decided by the Supreme Court.” https://t.co/jW09LbeDOZ pic.twitter.com/AEDRY6bCYt
— CSPAN (@cspan) July 10, 2018
More recently, Kavanaugh dissented against a majority opinion in a 2017 DC Circuit case, which allowed an undocumented teenager to take temporary leave from federal custody in order to obtain an abortion. As NBC News points out, Kavanaugh didn’t directly question the teenager’s right to an abortion, but disagreed with her ability to access “an immediate abortion on demand” and wrote that the majority had “badly erred.”
Democrats are seizing on Kavanaugh’s murky record on the issue as well as his recent dissent. “There’s every reason to believe he would overturn Roe,” California Sen. Dianne Feinstein said during a rally in front of the Supreme Court on Tuesday.
3) He’s on the side of big corporations and opposes the CFPB
Kavanaugh has a definite record in his apparent stance on large corporations and limiting potential regulation of them. His pro-business approach is highlighted in a number of rulings, including one opinion in which he questioned the constitutionality of the Consumer Financial Protection Bureau.
Progressives including Sanders and Massachusetts Sen. Elizabeth Warren have already begun sounding the alarm on this subject. “Kavanaugh will be a rubber-stamp for an extreme, right-wing agenda pushed by corporations and billionaires,” Sanders said in a statement on Monday. Warren, meanwhile, emphasized the threat that he could pose to the CFPB, an agency she helped establish.
There’s a lot to dislike about Brett Kavanaugh’s record – including his hostility toward consumers. He argued that the @CFPB – which has returned $12 billion to people who were cheated – is unconstitutional. The rights of consumers: that’s #WhatsAtStake. https://t.co/1lpHYdQ86M
— Elizabeth Warren (@SenWarren) July 10, 2018
As Michael Bobelian writes for Forbes, Kavanaugh has favored giving corporations a much longer leash when it comes to industry rules on issues as varied as net neutrality and pollution standards. He’s also expressed a healthy skepticism about what really falls into the purview of independent agencies:
In his rulings on the appellate panel, Kavanaugh has embraced an expansive view of corporate speech and has shown a willingness to allow greater leeway for corporations to spend on elections and political issues, according to Ian Vandewalker, Senior Counsel at the Brennan Center for Justice, a non-partisan law and policy institute.
The nominee also seems to harbor a particular distrust of the reach and breadth of federal agencies. Whether involving the Federal Communications Commission’s decision to institute net neutrality rules or the Environmental Protection Agency’s attempts to regulate multi-state air pollutants or other cases, Kavanaugh has taken a narrow view of regulatory power while presiding on the D.C. Circuit.
The White House has wasted no time touting this track record, according to Politico. “Judge Kavanaugh protects American businesses from illegal job-killing regulation,” a Monday evening email from the administration said. In its messaging about his nomination, the White House also emphasized his work curbing the reach of independent federal agencies.
Kavanaugh himself has written: “Because of their massive power and the absence of Presidential supervision and direction, independent agencies pose a significant threat to individual liberty and to the constitutional system of separation of powers and checks and balances.”
Politico noted that the administration called out his support for deregulation across a range of issues: “The White House wrote that Kavanaugh has overruled federal regulators 75 times on cases involving clean air, consumer protections, net neutrality and other issues.”
4) He will help dismantle the Affordable Care Act
Preserving the protections the ACA affords to people with preexisting conditions is one of the chief issue areas that Democrats see applying to their entire caucus — including vulnerable red-staters like Sens. Heidi Heitkamp, Joe Manchin, and Joe Donnelly, who may shy away from more divisive social platforms.
Given the existential threat to the ACA that’s winding its way through the courts, Democrats are framing the Justice nominee as somebody who could help determine the fate of the healthcare law. This past June, Texas led a series of states to challenge the constitutionality of Obamacare’s protections for those with preexisting conditions — and garnered the backing of the Trump administration.
In essence, the challenge argued that the congressional repeal of Obamacare’s individual mandate penalty rendered the mandate and other parts of the law unconstitutional.
Here’s more from Vox’s Dylan Scott:
Usually, a presidential administration defends current law, but the Trump administration took a different tack, agreeing with the conservative states that the mandate and, with it, the law’s rules that prohibits insurers from denying people health insurance or charging them higher rates should now be found unconstitutional. However, the Justice Department lawyers told the court that the rest of the law could stand, including the law’s massive expansion of Medicaid to millions of the nation’s poorest citizens.
If the Trump administration’s argument were to prevail, insurers could once again be able to flat-out deny Americans insurance based on their health status. No amount of federal subsidies would protect them. Medicaid expansion would remain, but the private insurance market would no longer guarantee coverage to every American.
Much like the issue of abortion, however, Kavanaugh’s stance is somewhat opaque. True, he dissented in a 2011 case that involved a challenge to the ACA, but as the Washington Post points out, he cited technical and jurisdictional reasons rather than constitutional ones.
For Democrats, however, the fact that he dissented is enough to prompt worry.
“We, Democrats believe the number one issue in America is healthcare and the ability for people to get good healthcare at prices they can afford,” Schumer said in his Tuesday briefing. “The nomination of Mr. Kavanaugh would put a dagger through the heart of that cherished belief that most Americans have.”
5) He could undo existing gun control policies
Gun control has become another emotionally charged issue that has taken on increasingly more weight as the number of mass shootings has spiked — but Kavanaugh’s rulings don’t have much sympathy for this movement.
Most notably, he argued that a ban on assault weapons is unconstitutional in a 2011 case, according to the Los Angeles Times.
In 2011, he filed a 52-page dissent when the appeals court, by a 2-1 vote, upheld a District of Columbia ordinance that prohibited semiautomatic rifles and magazines holding more than 10 rounds. The judges in the majority, both Republican appointees, noted that several large states, including California and New York, enforced similar laws.
But Kavanaugh said the ban on semiautomatic rifles was unconstitutional because the weapons are in common use in this country. “As one who was born here, grew up in this community in the late 1960s, 1970s and 1980s, and has lived and worked in this area almost all of his life, I am acutely aware of the gun, drug and gang violence that has plagued all of us…. But our task is to apply the Constitution and the precedents of the Supreme Court, regardless of whether the result is one we agree with as a matter of first principles or policy,” he wrote.
Democrats are focusing on this. Feinstein has deemed his views on gun control “extreme” and named them among the main reasons she opposes Kavanaugh. Connecticut Sen. Chris Murphy agreed, calling Kavanaugh “a Second Amendment radical, and a bad choice for the Supreme Court.”
The National Rifle Association lauded his nomination. “We will be activating our members and tens of millions of supporters throughout the country in support of Judge Kavanaugh,” said Chris Cox, the executive director of the organization’s Institute for Legislative Action, in a statement. “He will protect our right to keep and bear arms and is an outstanding choice to fill Justice Kennedy’s seat.”