Monday, September 10, 2018

Kavanaugh is a Trump Card With an Anti-Environmental Track Record

Supreme Court Nominee Brett Kavanaugh is the worst Supreme Court nominee for the environment on the shortlist provided by the Federalist Society. However, people are protesting his nomination for a wide range of reasons, not the least of which is the fact that Trump chose him because of his stance on executive powers.

The Senate hearings to confirm Kavanaugh have been chalked full of drama. Some Democrats have called the hearings a sham and decried the fact that the president invoked executive privilege to deny access to information about the nominee. Protests included an ominous recreation of iconic scenes from Margaret Atwood's Dystopia the Handmaid's Tale and in what Cory Booker is calling his"Spartacus moment" he contravened Senate rules by releasing information purportedly revealing Kavanaugh's support for racial profiling.

It is no secret that outside of conservative circles, Kavanaugh is a decidedly unpopular choice. There have been more than 100 events protesting his nomination. There are concerns about Kavanaugh's stance on women's reproductive rights, voting rights, LGBTQ rights, health care, racial justice and the rule of law.

People are concerned about his voting record as it relates to civil liberties, corporate power, democracy and the environment. The nominee is described as cravenly partisan and he has a track record of restricting government agencies.

Many Democrats are resisting Kavanaugh in part because the hearings are taking place right before a midterm election that is likely to see power shift away from Republicans in the House. Democrats remember how the GOP denied a hearing to President Obama's Supreme Court nominee Merick Garland before the election of 2016.

Kavanaugh's rulings as a judge provide fodder that buoys concerns from both Democrats and libertarians. For starters he has ruled in favor of the government’s mass electronic surveillance programs and against net neutrality,

He has also ruled against the Consumer Financial Protection Bureau, and sided with corporations that deny their workers collective bargaining rights and protections against workplace discrimination. He has even argued against undocumented workers’ right to unionize.

Trump has already done damage to democracy and Kavanaugh may play a pivotal role in helping the president to go even further. This may even extend to protecting those involved with Russian interference in the now infamous 2016 election. A Russian company indicted for interference cited the nominee's past rulings in defense of political spending by foreign nationals.  

His support for a racially-motivated South Carolina voter ID law that kept voters of color from casting their ballots has led to concerns that he may defend voter suppression.

Kavanaugh is also one of the most anti-environment judges in America. Through his rulings, he has demonstrated his antipathy towards government support for climate action. He has shown support for corporate polluters and opposed public health safeguards.  Many are concerned that if he is confirmed he will hamper environmental protections and climate actions for decades to come. In this capacity he could weaken or even strike down important rules.

“Some people have said it could nudge the court to the right,”  Glenn Sugameli, founder of Judging the Environment, which analyzes judicial nominees. “It’s way worse than that.”

The nominee has repeatedly demonstrated that he opposes the government's environmental protections including EPA's authority to regulate carbon emissions.

Since 2006, Kavanaugh has served on the U.S. Court of Appeals for the District of Columbia Circuit. In this capacity he has indicated that he is skeptical that EPA has the authority to limit greenhouse gases. In 2017 Kavanaugh ruled against an Obama-era EPA regulation aiming to phase out greenhouse gases known as hydrofluorocarbons or HFCs.

“However much we might sympathize or agree with EPA’s policy objectives, EPA may act only within the boundaries of its statutory authority,” he is quoted as saying in Greenwire.. “Here, EPA exceeded that authority.” 

In a Climatewire article he is quoted as arguing, “Global warming isn’t a blank check” for the president to regulate carbon emissions. As he explained during oral arguments “I understand the frustration with Congress,” he added. But he said the rule, rather than Congress, was “fundamentally transforming an industry.”

It appears clear that Kavanaugh does not believe that the government can regulate greenhouse gases under the clean air act. Given the current statute we may see climate action stymied, but if we parse his words carefully it suggests that he would accept the authority of Congress to regulate. 

Kavanaugh has been described as serious, diligent, and persuadable. He has also been called, a "judges judge" meaning that he respects jurisprudence and the conventions of law. If he holds true to this description precedent will limit what he will do. During his confirmation hearings he repeatedly stated that his job is to enforce the laws that are crafted by legislators. That means that if the laws that congress passes are written in conformity with the Constitution, they may be able to survive a more conservative Supreme Court.

This is a ray of hope for those who feel Kavanaugh is an unmitigated disaster. With the right legislation it would be hard for Kavanaugh to dissent. However, if that is to happen it will require legislation from Congress. For there to be such legislation we will need to see the Democrats take control of the House in the forthcoming midterms.

Kavanaugh was probably not nominated as a Supreme Court Justice because his track record of opposing climate and environmental action. It is very likely that he was selected because Trump thinks of him as a get out of jail free card.

Trump tapped Kavanaugh to shield himself from accountability if the Supreme Court is asked to weigh-in on the commander and chief’s criminal activity. Kavanaugh has made statements that suggest he does not believe the president is subject to legal challenges stemming from the Meuller probe.  He has even questioned Meuller's authority to investigate the president.

Trump does not need to be prophetic to see the noose is tightening, people with whom he is closely associated have been or soon will be sentenced to jail time, this include Paul Manaford and George Papadopoulos and Michael Cohen is sure to follow. However, these are minor precursors to the main event which will focuses on Trump's corruption and collusion with Russia. There is a high degree of probability that at some point the Supreme Court will be asked to rule and Trump is looking to Kavanaugh to defend his executive authority.

The only way that Kavanaugh will be prevented from being the next justice is if all democrats and a couple of Republicans in the Senate vote against his confirmation. If his nomination is confirmed he will take the Supreme Court seat held by Justice Anthony Kennedy who is retiring at the end of the month.

Republicans have demonstrated that they will not uphold their constitutional duty to check the power of the chief executive. The forthcoming election offers a way around this stalemate and could very well bring an end to Trump's nightmarish hold on power.

If the Kavanaugh nomination succeeds, Trump will go down in history for stacking the Supreme Court with two conservative justices. However, all is not lost. If as expected Democrats gain control of the House in the midterms they they can craft laws that can withstand challenges from the nation's highest court.

A Democrat controlled House would be tempered by a conservative Supreme Court and this may serve the founding fathers intent which was to have a system of checks and balances. 

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