Judge Kavanaugh is the Wrong Judge for the Supreme Court

Written by Lisa A. Hayes

This morning the Senate began hearings on the nomination of Judge Brett Kavanaugh to a lifetime appointment on the Supreme Court. CDT urges the Senate to reject Judge Kavanaugh’s nomination. Judge Kavanaugh has sterling credentials, and is by all accounts a good person and respected member of the legal community. But those characteristics alone are insufficient to warrant confirmation to the nation’s highest court.

CDT has never previously opposed a nominee to the Supreme Court, and does not do so lightly now. Our opposition is two-fold.  Our first concern is substantive: Judge Kavanaugh’s extensive record on the DC Circuit demonstrates that he will not protect the online civil liberties held dear by CDT, including freedom from government surveillance and the protection of free expression online. Our second concern is procedural: President Trump has been routinely disparaging the judiciary and encouraging Americans to view judges as unqualified and biased. If the Senate confirms this highly partisan nominee despite being denied access to 100,000 pages of relevant past work, we risk a widespread breakdown of public confidence in the integrity of our courts.

CDT urges the Senate to reject Judge Kavanaugh’s nomination.

[Here are the questions CDT hopes are asked during Judge Kavanaugh’s confirmation hearing.]

Judge Kavanaugh’s Record

America is in the midst of a digital transformation, and the law is struggling to keep pace with technological advances. In the years ahead, the Supreme Court will be tasked with deciding how the Constitution interacts with the technology in our daily lives. If Judge Kavanaugh is confirmed, he will cement a conservative majority that is unlikely to restrict the government’s unprecedented surveillance capabilities or preserve individuals’ First Amendment rights online.

For example, shortly after Congress enacted the USA Freedom Act requiring the NSA to stop the bulk collection of telephone metadata and instead request such records from the phone companies, Judge Kavanaugh heard the case of Klayman v. Obama. In Klayman, Judge Kavanaugh ruled that the NSA’s bulk collection of the telephone metadata of almost every American was “entirely consistent with the Fourth Amendment.”  Judge Kavanaugh further found that the mass surveillance should be allowed because of the “special need” that the government has to prevent terrorism, noting “[i]n my view, that critical national security need outweighs the impact on privacy occasioned by this program.”

Similarly, Judge Kavanaugh dissented from the DC Circuit’s decision in US v. Jones when the court determined that authorities had violated a suspect’s Fourth Amendment rights by placing a GPS tracker on his car without a warrant. Breaking with his colleagues, Judge Kavanaugh found that the suspect had no reasonable expectation of privacy in his public movements, and that the government could secretly track the suspect without judicial oversight.

On the free expression front, Judge Kavanaugh has repeatedly ruled in favor of corporate rights over the rights of individuals. Most recently, Judge Kavanaugh broke with his colleagues to dissent in United States Telecom Ass’n v. FCC, a case challenging the 2015 Open Internet Order passed by the FCC to protect net neutrality. Breaking with precedent, Judge Kavanaugh argued that the FCC lacked authority to issue the regulations. Ignoring the many differences between the nature of the internet and traditional cable, Judge Kavanaugh wrote that “[i]nternet service providers may not necessarily generate much content of their own, but they may decide what content they will transmit, just as cable operators decide what content they will transmit.”  Giving ISPs the ability to pick and choose what websites their subscribers may access gives regional monopolies the ability to silence speech they dislike.

Judge Kavanaugh also questions the Supreme Court’s well-established Chevron doctrine. The Chevron doctrine is the principle that courts should defer to federal agencies’ regulatory decisions when interpreting ambiguous statutes. On many occasions, Judge Kavanaugh has written separately to explain his beliefs regarding the tightly circumscribed scope of a federal agency’s statutory authority.  In one such case, Taylor vs. Huerta, Judge Kavanaugh wrote that the Federal Aviation Administration’s rule for registering hobbyists’ drones was unlawful. A move by the Supreme Court to overturn Chevron will have broad ranging impacts for agencies relied upon to protect consumer safety and privacy in the digital age.

The Supreme Court Must Remain a Politically Neutral Body

In order to succeed, our court system must be respected as a politically neutral body that faithfully and independently interprets and applies our Constitution. But President Donald Trump has displayed a troubling pattern of attacking judges and the courts.  He has called the American justice system a “joke” and a “laughingstock.” He believes that the courts are “slow” and “political,” and said that “[t]he courts are making the job very difficult.” He dismisses the opinions of “so-called judges” and has threatened that if a terrorist attack occurs we should “blame [the judge] and the court system.”

As noted by the American Bar Association Journal earlier this summer, “[w]hile judicial independence has been an important fundamental principle since the birth of the United States, its relevance today is paramount.” For centuries, Americans have relied on fair courts to prevent government overreach and to safeguard constitutional rights, regardless of the political motivations of the other two government branches. Having the federal courts serve as an impartial and independent body free of executive interference is crucial to preserving the ideals of the United States of America.

Pushing through President Trump’s latest nominee in such a rush that the Senate is unable to fully vet the nominee risks further weakening the public’s perception of the Supreme Court.  Judge Kavanaugh served in important roles in the George W. Bush administration, as a lawyer in the White House Counsel’s Office, and as staff secretary. For previous Supreme Court nominees, such presidential records have been reviewed and released by the National Archives.  However, due to the sheer volume of documents produced by Judge Kavanaugh during his years in the Bush Administration, the National Archives said it would need until October to complete its review. Instead of allowing the standard vetting process to run its course, the Administration has attempted an end run around the National Archives by instead independently assessing records obtained from the George W. Bush Presidential library.

This is the moment for the Senate to preserve the institution of the Supreme Court.

The Administration disclosed more than 400,000 documents – but withheld more than 100,000 more – three days ago, on the Friday evening before Labor Day weekend. The Archives noted that the decision for President Bush’s representatives to provide documents directly to the Judiciary Committee, bypassing the Archives, “is something that has never happened before.”  It is impossible to have confidence in the vetting process, given the lack of an independent review.  The legitimacy of Judge Kavanaugh’s candidacy for the Court is called into question if senators have not had a chance to review even the portion of relevant documents that were disclosed.

Justice Elena Kagan fully complied with the Senate’s request for her records prepared while both in the Clinton White House and in the Justice Department, as did Chief Justice John Roberts for his time in the Reagan and George H. W. Bush Administrations.  Judge Kavanaugh should be held to the same standard.

This is the moment for the Senate to preserve the institution of the Supreme Court. Members of Congress have boldly stood up to protect the integrity of the Supreme Court in the past.  When President Franklin Roosevelt (a Democrat) tried to pack the courts, the (Democratic-controlled) Senate helped block the plan. In reflection, Chief Justice William Rehnquist observed that it was the members of the United States Senate “who stepped in and saved the independence of the judiciary.”

More recently, the Senate has rejected ideologically extreme nominees for this same seat on the Court.  In 1987, the moderately conservative Justice Powell retired. In response, President Reagan nominated Judge Robert Bork to fill the seat.  After a careful review of Judge Bork’s legal record, the Senate reject his nomination as too extreme.  Douglas Ginsburg was then nominated for the seat, but withdrew himself from consideration after the public became aware that he had used marijuana.  The Senate eventually confirmed Anthony Kennedy to the position Judge Kavanaugh now seeks to occupy.

The Senate has a duty to protect the Court as the defender of the Constitution. Judge Kavanaugh’s judicial opinions show no commitment to protecting civil liberties in the digital age. Confirming Judge Kavanaugh without the opportunity to review his past writings and at a time when the independence of the judiciary is under attack by the Administration would erode confidence in our judicial system. The Senate should reject Judge Kavanaugh’s nomination.

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