DRWMAG.COM 10 #353 • SEPTEMBER 2018 • 29 YEARS STRONG Judging (Justice?) Brett Kavanaugh POINT/COUNTERPOINT FOR THE LEFT RANDY A. FLEISCHER Donald Trump has nominated DC Appellate Judge Brett Kavanaugh for the open seat on the U.S. Supreme Court. Should you be afraid? You should be very afraid.Trump’s nomination to the Court will in- crease the conservative majority to 6-3. Judge Kavanaugh was selected from a list of 25 potential nominees drawn by a special interest group that favors the elite against employees, civil rights, racial equality, vot- ing rights, women’s rights, LGBT rights, and the environment. Kavanaugh has made it clear that he does not believe a sitting Pres- ident should be subject to “criminal investigations and prosecutions” as there is a Constitutional issue whether a President can be criminally indicted and tried while in office. Kavanaugh has even stated that the U.S. v. Nixon case wrongly compelled President Nixon to turn over the Watergate tapes that linked Nixon to the break in at Democratic headquarters, suggesting that Supreme Court decision be overturned. Scared yet? What about health care? Wondering how a Justice Kavanaugh would rule on the Affordable Care Act, also known as Obamacare? In 2011 the DC Circuit upheld the constitutionality of the Affordable Care Act. Kavanaugh dissented, providing a roadmap to the disman- tling of the act, stating “The President might not enforce the individual mandate provision if the President concludes that enforcing it would be unconstitutional,” arguing that the President could do this “even if a court has held or would hold the statute constitutional.” People need Obamacare for health insurance and further need coverage for pre- existing conditions.Those do not appear to be on Kavanaugh’s list of things that need protection. Another item not on his list is a woman’s right to choose. Planned Parenthood is beginning a campaign against the nomination, showing how women will be affected if he is approved.Tens of millions of dol- lars are being spent by various groups to fight this nomination, hope- fully it will be effective. Kavanaugh’s record on employment cases is even more frighten- ing. Kavanaugh’s confirmation would be harmful to working people and move us backward on worker’s rights laws. In prior decisions, Ka- vanaugh routinely sides with the employer, accepting the Employer’s word over the evidence submitted by the Employee, or he has refused to allow the Employee to present their case to the jury. Kavanaugh has relied on pro-employer doctrines that were cre- ated by Judges, like the “honest belief defense” or the “same actor de- fense”.Those defenses deny employees their day in court as it allows the Court to give greater weight to the word of the employer over that of the employee without a real basis in the actual text of any employ- ment law. His aversion to “judicial activism” only prevents the support continued on page 38 FOR THE RIGHT PAUL VISCOVICH “The stakes have never been higher!” Several times each week I re- ceive frantic email from the Democratic National Committee and Democratic Senatorial Campaign Committee asking me to “chip in” to help flip the Senate to Democrat control. One urgent reason is to pre- vent the confirmation of Judge Brett Kavanaugh to fill retiring Justice Anthony Kennedy’s seat on the Supreme Court. According to these breathless warnings, Judge Kavanaugh would cement a solid block of right-wing extremists bent on destroying six decades of social prog- ress. Could such an ideological zealot really advance so far through the federal judiciary? As a legal matter, this confirmation should be based on the evidence.What are the charges?What are the facts? “Kavanaugh would destroy theAffordable CareAct!” This claim is based on his dissent in Seven Sky v Holder (2011). In reality, he wrote only that the federal courts lacked jurisdiction to hear challenges to Obamacare’s individual mandate because it is not a penalty fee but a tax, making it a Congressional matter. Chief Justice John Roberts subsequently adapted Kavanaugh’s line of reasoning when he joined the majority opinion that saved Obamacare in 2012 (NFIB v Sibelius). “He was hand-picked byWall Street because he opposes financial protection for consumers!” Not quite.This charge is based on his dis- sent in PHH Corp v Consumer Protection Finance Bureau (2016). Democrats falsely claim he attacked the CPFB’s constitutionality. In fact, he argued simply that the massive power of the agency’s director overstepped constitutional separation of powers, and that the presi- dent should be empowered to remove the director for reasons other than “cause.” “He thinks the president should be exempt from prosecution!” Judge Kavanaugh helped draft the Starr report that led to President Clinton’s impeachment. But a decade later during the ObamaAdmin- istration, he wrote in the Minnesota Law Review that Congress should pass laws protecting presidents from criminal and civil indictment un- til after they leave office because impeachment is the constitutional way to handle presidential misbehavior while in office. Then we come to that Holy Grail of Democrat ideology, abortion. Judge Kavanaugh’s supposed animosity to Roe v Wade hangs largely on his 2017 dissent in Garza v Hagan. His opinion did not attack the Roe decision but instead merely rejected the notion of government responsibility to provide an abortion for an illegal alien.This is hardly extremist since many voters question the legality of using taxpayer dol- lars to provide elective medical procedures (elective means “choice”) to illegal aliens. Moreover, Judge Kavanaugh protected the right of Emily’s List to set up a non-profit wing (Emily’s List v FEC, 2009). Anti-immigration? Anti-Muslim? Anti-working class? The list of continued on page 38