A woman holds an American flag and a poster that reads "Kava-NOPE"
Every Hard-Won Fight for Justice is at Risk with Brett Kavanaugh's SCOTUS Nomination

[Featured image by Lorie Shaull/Flickr/CreativeCommons]

From Dena Robinson, J.D., If/When/How Board President

Dena Robinson, a smiling, brown-skinned woman with short braided hair
Dena Robinson

Two months ago, If/When/How issued a statement from Board President Dena Robinson, detailing our community’s shared concerns about Trump’s nomination of Brett Kavanaugh to the Supreme Court. We watched Kavanaugh’s confirmation hearings closely, and our concerns have not been allayed. If anything, we are more convinced than ever that Brett Kavanaugh is a threat to reproductive justice, to civil rights, and to democracy itself.

We take issue with the speed and nature of the hearings, which were rushed by right-wing politicians hoping to confirm Kavanaugh based on an incomplete record before the midterm elections in November. We question these hearings’ legitimacy in light of the ongoing federal investigation into the Trump Administration’s dealings with Russia and the strong evidentiary record of Russia’s attempt to thwart, sway, and otherwise interfere with the 2016 election.

But the hearings proceeded nonetheless. We feel an obligation, as lawyers and law students with a deep investment in social and reproductive justice, to therefore comment on their substance, and express the strongest possible opposition to Kavanaugh’s confirmation.

  • Kavanaugh is anti-contraception: During his confirmation hearings, Judge Kavanaugh espoused several anti-reproductive justice and anti-abortion views. First and most glaringly, Judge Kavanaugh stated that he believed contraceptives induce abortion — that birth control is an abortifacient. This is a dangerous false equivalence that has been perpetuated for years by the anti-abortion movement, and has no grounding in science. This is not a mistake, or simple ignorance; this is a well known dog whistle to the anti-abortion movement intended to signal Judge Kavanaugh’s opposition to reproductive freedom.
  • Kavanaugh is anti-abortion: Judge Kavanaugh’s insistence that Roe v. Wade is “settled” law is not reassuring; his answer ignores the fact that the Supreme Court can unsettle settled law. Kavanaugh’s dissent in the Jane Doe abortion case demonstrates his opposition to legal abortion, and the enthusiastic support for his nomination from the anti-abortion movement speaks for itself. This concerns us because there is no system in place to check the Supreme Court other than a new generation of Supreme Court justices — remember, these are individuals who are appointed for life.
  • Kavanaugh is not supportive of all women: We saw a small handful of women in elite legal circles testify that because Judge Kavanaugh had been kind to them, or supportive of the careers of a few influential women lawyers, he will understand the concerns of marginalized women nationwide who do not have access to the power and privilege of those in Kavanaugh’s inner circle. Not only does Judge Kavanaugh’s record show the precise opposite, this is deeply offensive tokenism, and, essentially, the gendered equivalent of “I have a black friend, so ….” This sets the bar so low for judicial acceptability on reproductive rights that one could practically expect to trip over it.
  • Kavanaugh is hostile to communities of color: In his exchange with Senator Kamala Harris, Judge Kavanaugh equivocated on whether key parts of the Voting Rights Act that allow voters to push back against racist voter suppression were constitutional. This is downright chilling. The right to vote means little without access to the voting booth, and Kavanaugh displayed a powerfully casual disregard for lawmakers’ historic and current efforts to disenfranchise communities of color.
  • Kavanaugh is no friend to immigrants: Judge Kavanaugh’s record shows that he believes immigrants are not deserving of the same basic rights as anyone else. We’ve already read the patronizing judicial temper tantrum that Judge Kavanaugh threw in the case of Jane Doe, the 17-year-old immigrant to whom Kavanaugh would have liked to deny abortion care in Texas, and we know that he opposes the right of undocumented workers to organize. Combined with his confirmation testimony, rife with doublespeak and obfuscation, we can be assured he will bring this background with him when he works to legitimize the xenophobic, racist policies of the Trump administration from the Supreme Court bench.
  • Kavanaugh is not trustworthy: We have no way of knowing the precise motivations behind Judge Kavanaugh’s under-oath decision to lie about or otherwise misrepresent his relationship to documents he received relating to George W. Bush’s judicial nominees in the early 2000s. Whether due to a disturbingly poor memory, malicious intent, or plain, self-interested hunger for a lifetime SCOTUS appointment, it’s clear that Kavanaugh does not hold himself to the high ethical standards we must demand of a man in his position.
  • Kavanaugh is not fit to play a deciding role in a democratic system based on checks and balances: Every hard-won fight for justice and progress for those of us who aren’t straight, able, white male citizens is at risk with this nomination.

To pretend that any judge — including Judge Kavanaugh — would not bring their social location, lived experience, and personal lens to the bench is, at best, feigned naivieté in the service of upholding the status quo of patriarchy and white supremacy. To that end, we take Judge Kavanaugh’s testimony, including his telling silences and misrepresentations of the truth, for what they are: an extensive accounting of the judge’s opposition to values we hold dear — bodily autonomy, personal freedom, diversity, and honesty.

We have every reason to believe that Judge Kavanaugh was selected for nomination to the Supreme Court because conservative extremists trust him to rule against abortion and against voting rights; to favor religious protections only for those who share his faith; and to protect the executive office, whether occupied by Trump or another president, from scrutiny and accountability. The only way to hold power accountable is to hold it accountable to its own principles, and we find Brett Kavanaugh’s principles deeply suspect and, in some key and disturbing ways, absent entirely.

We encourage every member of the If/When/How community to continue calling their senators and demanding they vote against allowing Brett Kavanaugh to serve on the highest court in the land.

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