Brett Kavanaugh (Getty/Chip Somodevilla)

Trump's reality-show Supreme Court nominee, Brett Kavanaugh: He's no moderate

Did women just lose their rights on a reality show? Trump's pick was always going to be an anti-choice ideologue


Amanda Marcotte
July 10, 2018 10:00AM (UTC)

Most days under Donald Trump's president are rough for those who still care about human rights and decency, but Monday was particularly disturbing. Even as they repeatedly acknowledged that Trump was treating a Supreme Court appointment like a reality show,  the ratings-hungry cable news networks played along, profiling the final contestants with the same hype-the-suspense tone that networks use to advertise shows like "The Bachelorette." (Or, to be sure, "The Apprentice.")

Because of this, not enough attention was paid to the fact that it hardly mattered which one of his much-hyped contestants got the rose on Monday evening — during prime time, of course — because all of them were equally committed to the belief that wealthy white men are the only real citizens and the rest of the country's human rights are up for grabs.

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American politics has often felt like a psychedelic satire of itself, but no more so than the night when women lost their human rights in a game-show format.

With great fanfare, the reality-TV authoritarian declared he was nominating D.C. circuit court judge Brett Kavanaugh, a pick that was no more surprising, and no more "moderate," than any of the other finalists on this season of "Who Wants to Be a Supreme Court Judge?"

Now that the cheesy Trumpian theatrics are over, the bad stuff may just be beginning. For the rest of the week, we'll be getting breathless coverage that falsely implies that Kavanaugh is a moderate or that he will exercise judicial restraint. There is no reason to believe any of this.

Conservatives in recent days have been priming journalists to make this mistake by loudly expressing "concerns" that Kavanaugh might not be a crazed enough right-wing hack. In one case, Kavanaugh rejected the legal defenses of the Affordable Care Act, but because he acknowledged in his opinion that the government has the power to tax people, conservatives are now claiming he's more moderate than he actually is.

Similarly, Kavanaugh tried to prevent a teenage immigrant girl being held in detention from accessing her legal right to an abortion, but anti-choice activists now say that his language denouncing abortion rights was not strident enough. This has been used as an excuse to portray him as moderate and restrained, even though, in reality, he did exactly what anti-choice activists want.

It's true that Kavanaugh tries to write arguments and opinions that sound like a judge rather than an Infowars blogger. That should not lull anyone into mistaking him for anything but a militant right-wing jurist.

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"Today, with the nomination of Judge Kavanaugh, the President is presumably making good on his Roe-reversal promise," Nancy Northup of the Center for Reproductive Rights said in an emailed statement, noting that on the sole occasion Kavanaugh has ruled on an abortion case, he tried to deprive a teenage girl of her rights.

Rachel Tiven of Lambda Legal said that, like "every other judicial nominee who has a seal of approval from the Heritage Foundation and the Federalist Society," Kavanaugh "will abuse his power on the Court to protect the wealthy and the powerful while depriving LGBT Americans of our dignity, demeaning our community, and diminishing our status as equal citizens."

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Now that he's the official choice, anti-choice organizations are lining up behind Kavanaugh. In an emailed statement, Catherine Glenn Foster of Americans United for Life said her organization believes Kavanaugh will "not look to Roe and Casey – two of the worst examples of judicial activism" as legitimate precedent.

The Alliance for Justice released a summary of Kavanaugh's career that should put to rest any notion that he's a moderate. On top of his repeated opposition to the Affordable Care Act and his attempt to force a teenager in custody to have a baby, Kavanaugh has taken a number of other hard-right positions in his time on the bench.

Kavanaugh opposed net neutrality. He has a lengthy history of ruling against environmental regulations meant to keep toxins out of the air and slow down the rate of climate change. Like Justice Neil Gorsuch, Trump's previous nominee, Kavanaugh has a lengthy history of ruling against the rights of employees to work free of discrimination and in a safe environment.

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Kavanaugh is so consistently pro-corporate and anti-labor that he ruled in favor of Sea World after a captive orca at the park literally killed an employee by dismemberment. Other judges in that case found that Sea World had failed to protect its employees adequately from the predators they keep caged for people's amusement.

While Donald Trump is a uniquely terrible person and quite possibly a traitor, this Supreme Court pick should be a reminder that the authoritarian project of dismantling democracy and ending reproductive rights didn't start with him. It would be playing out in remarkably similar fashion under President Marco Rubio or President Ted Cruz. Trump has been far more open about allowing right-wing think tanks like the Federalist Society to dictate his possible Supreme Court picks, but nearly any other Republican would have done the same thing, if somewhat more discreetly to keep up the illusion of independence.

Because of this, it's critical to place this horrible turn of events into a larger context: Conservatives have been staging a takeover of the federal courts for the last several decades. It's not just the Supreme Court, either. By slow-rolling Barack Obama's court picks, Senate Majority Leader Mitch McConnell has cleared the path for horrendous court-packing under Trump, and the president and his allies have taken advantage. While liberals were focused on other things — the courts were barely mentioned during the Democratic primaries in 2016 — Republicans have set up a situation where they possess the legal power to overrule the will of the people on everything from abortion rights to gun safety to the idea of one-person, one-vote.

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The damage this has caused will, at best, take decades to undo. At worst, it will never be undone and we'll look at the past couple of decades — which were not all that progressive, by any real measure — as the pinnacle of American democracy.  The only thing that can stop that is liberals and progressives getting it together, abandoning all complacency and dedicating the same kind of time and resources that it took for conservatives to conquer the courts in the first place.

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Amanda Marcotte

Amanda Marcotte is a politics writer for Salon. Her new book, "Troll Nation: How The Right Became Trump-Worshipping Monsters Set On Rat-F*cking Liberals, America, and Truth Itself," is out now. She's on Twitter @AmandaMarcotte

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