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Senate has reasons to reject Kavanaugh, even without sex allegations

President Trump could have nominated a moderate Republican to replace Justice Kennedy. Instead, he picked someone from the far right.

Supreme Court nominee Brett Kavanaugh reacts as he

Supreme Court nominee Brett Kavanaugh reacts as he testifies after questioning before the Senate Judiciary Committee on Capitol Hill in Washington. Photo Credit: AP / Alex Brandon

The Senate Judiciary Committee hearings on Judge Brett Kavanaugh’s nomination to the U.S. Supreme Court did nothing to allay concerns that, if confirmed, he will cast the decisive vote to dramatically lessen individual rights and equal protection.

Kavanaugh has been a staunch conservative throughout his career and no one, Democrat or Republican, has the slightest doubt what he would be as a Supreme Court justice. Even apart from the recent allegations of sexual assault when he was a teenager, the Senate should reject Kavanaugh’s nomination.

Throughout American history the Senate has rejected Supreme Court nominees because of their ideology. In 1795, the Senate rejected President George Washington’s pick of John Rutledge to be the second chief justice because of Rutledge’s views on U.S. neutrality on the war between England and France.

In the 19th century, the Senate rejected about 20 percent of nominees, almost always on ideological grounds. Several nominations were rejected in the 20th century because the Senate feared that the individual would push the court too far to the right.

In 1987, President Ronald Reagan nominated Judge Robert Bork to replace Justice Lewis Powell, who had widely been regarded as the swing vote on the court. Like Kavanaugh, Bork had impeccable professional credentials. Like Kavanaugh, Bork was a staunch conservative. The Senate rejected the nomination of Bork because a majority believed he would endanger abortion rights and limit the protections of liberty and equality. Anthony Kennedy was then nominated and confirmed.

Kavanaugh should be rejected for the same reasons as Bork. There is no reason to doubt that Kavanaugh would be a vote to overrule Roe v. Wade. As a judge on the Court of Appeals for the District of Columbia Circuit, he faced a case involving a 17-year-old in immigration detention and her access to an abortion. The appeals court ruled in her favor, as the law clearly required, but Kavanaugh dissented, criticizing “abortion on demand.”

During his hearing, Kavanaugh referred to Roe as precedent and even as “double precedent” because it had been reaffirmed by the Supreme Court. But that is simply describing the law. Kavanaugh gave no indication that he would follow this precedent. He would likely vote to overrule Roe, either explicitly or by upholding the many state laws restricting abortion.

Since 2010, 33 states have adopted more than 400 new laws imposing restrictions on abortion. In 1992, in Planned Parenthood v. Casey, Justice Kennedy voted with the majority in a 5-4 decision to reaffirm Roe v. Wade. In 2016, Kennedy was in the 5-3 majority that declared unconstitutional a Texas law that would have closed abortion clinics in that state.

I challenge anyone to find anything in Kavanaugh’s career or testimony before the Judiciary Committee that provides a basis for believing that he would vote to uphold abortion rights.

In many other areas, Kavanaugh would also undermine individual rights and equality. Kennedy wrote the majority opinion in every Supreme Court decision in American history expanding rights for gays and lesbians, including the 2015 decision that declared unconstitutional state laws prohibiting same-sex marriage. He also wrote the opinion in the 2016 ruling upholding the University of Texas affirmative action program. Again, I challenge anyone to find anything in Kavanaugh’s record that provides a basis for believing that he would vote in the same way.

I am especially concerned about Kavanaugh’s views on executive power. In a speech a few years ago, he expressed the view that the Supreme Court was wrong to uphold a federal law that authorized independent special prosecutors. Kavanaugh wrote a law review article arguing that a sitting president should not be subject to civil or criminal investigation and proceedings. Especially now, with a president who is under investigation for possible serious crimes, it would be a huge mistake to confirm a justice who likely would vote to put the president above the law.

President Trump could have nominated a moderate Republican to replace Justice Kennedy. Instead, he picked someone from the far right. That was his prerogative as president.

But it is also the prerogative of the Senate to reject the nominee as being too ideologically extreme. It should do exactly that with Kavanaugh.

Erwin Chemerinsky is dean and professor of law at the UC Berkeley School of Law.

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