Janine Jackson interviewed former National Lawyers Guild head Marjorie Cohn about the Kavanaugh nomination for the October 5, 2018, episode of CounterSpin.
Brett Kavanaugh
Janine Jackson: I have so many questions, but they really all amount to: How is this happening? How are we at a place where a man who shout-sobbed his way through his hearings, snarling and accusing, and making clear that he hates “Democrats,” “the Clintons” and “the left,” could even be considered to have the temperment appropriate to a Supreme Court justice?
Marjorie Cohn: That’s an excellent question, but it’s very clear, and it’s been clear from the start, that the Republican leadership, in concert with Donald Trump, is going to ram this nomination through so that they can achieve a solid right-wing majority on the Supreme Court which will last for decades, and will reverse many of the rights that we hold dear.
The Republicans know that Kavanaugh would provide a reliable vote against immigrants, workers, voters, and gay and transgender people. He would deliver a dependable vote for employers, private property and church-state bonding, and they can rest assured that he would do his best to immunize Trump from criminal liability, and enable him to continue their mean-spirited, right-wing agenda. And this is more important to them than any judicial temperament, than any credible allegations of sexual assault, because the bottom-line issue—one of the most significant issues—is abortion rights, reproductive rights, and overturning Roe v. Wade, in addition to gay rights, and they have rationalized all of these other horrors to that end.
JJ: Kavanaugh seems so tainted, though, at this point. Why not just some other conservative? What is it about the timeline that you think makes them feel like they have to keep going with this candidate, over the objection of now, you know, millions of people?
MC: In part, they want Kavanaugh on the Supreme Court before the November 6 midterm elections, because if the Democrats achieve a majority in the Senate, then there might not be sufficient votes to confirm him after the election. That’s the most immediate consideration, but they were in a hurry to get him confirmed by October 1, which was the first day of the Supreme Court’s new term, and they want to help ensure the outcome of several hot-button cases that are on the Court’s docket, including cases involving double jeopardy, immigration, age discrimination and the Endangered Species Act. And there is a possibility that the Court might decide to take up cases involving gerrymandering, gay and transgender rights, and the separation of church and state.
JJ: You’ve been writing about Brett Kavanaugh for a while now, and you have pointed out that there’s plenty to undermine his candidacy even before we get to sexual assault allegations, and those other things are, in a way, at risk almost of being overlooked. And one of the concerns is around his record on international law and the power of the president.
MC: Keep in mind that international law—insofar as the United States has ratified treaties—or customary international law are part of US law, under the Supremacy Clause of the Constitution, and yet Kavanaugh has nothing but scorn for international law, and he confuses international law with foreign law. International law, as I said, is treaty law and customary international law, which is customs that countries have built up over the years. But foreign law is totally different. It’s the law of France or Brazil or Germany; and he conflates the two.
Now that he’s been on the Court of Appeals, and during the Bush administration’s so-called “War on Terror,” Kavanaugh almost always deferred to the president on executive power…. Kavanaugh has a record of dangerous deference to the president. Notwithstanding the case of Jones v. Clinton, the Paula Jones case, which said that a president has to answer to at least a civil case—that didn’t involve a criminal case—Kavanaugh doesn’t think that a president should be bothered to answer to a civil case or a criminal case while he’s in office.
And under US v. Nixon, a unanimous Supreme Court said that Nixon had to turn over the tapes during the Watergate scandal, and that led to Nixon’s resignation. And yet, although that case, US v. Nixon, is a settled precedent, Kavanaugh has said he thinks it should be reconsidered. And one of the most disturbing things, Janine, is that in a law review article Kavanaugh wrote in 2014, he wrote that, yes, the Take Care Clause of the Constitution requires the president to enforce the law; it says that the president shall “take care” that the laws are faithfully executed. But then Kavanaugh went on to say, yes, the president has to enforce the law
at least unless the president deems the law unconstitutional, in which event the president can decline to follow the statute until a final court order says otherwise.
So Kavanaugh would create a dangerous presumption in favor of a president who refuses to follow the law. That is very worrisome.
