They probably won’t, but they’re sure going to try.
As soon as Trump announced that he would be picking Justice Anthony Kennedy’s replacement, Democrats began gearing up for a fight — with plans to leverage issues like abortion and healthcare as key flash points. Now that Brett Kavanaugh has officially been selected, there are a few specific points of attack that lawmakers are emphasizing about his record, which has included longstanding support for gun freedoms and a unique approach to presidential power.
Although they’ve become activist rallying cries, Kavanaugh’s views on polarizing subjects like Roe v. Wade and the Affordable Care Act are a bit more difficult to parse. Democrats say endorsements from groups like the Heritage Foundation and the Federalist Society are telling enough on their own.
“In selecting Judge Kavanaugh, President Trump did exactly what he said he would do on the campaign trail — nominate someone who will overturn women’s reproductive rights and freedoms and strike down health care protections for millions of Americans, including those with preexisting conditions,” Senate Minority Leader Chuck Schumer (NY) reiterated in a floor speech on Tuesday.
Given Kavanaugh’s extensive paper trail, there are a couple angles lawmakers are taking as they seek to block his nomination. Here are five arguments Democrats are making as they go on the offensive against Kavanaugh.
As Vox’s Andrew Prokop writes, Kavanaugh has argued that presidents should not be distracted from their executive office responsibilities by potential criminal investigations — even if they happen to be the subject of such probes. Trump, is in fact, currently the subject of a special counsel investigation — a rather glaring coincidence in the context of Kavanaugh’s selection.
Here’s Andrew’s rundown of Kavanaugh’s writings on the subject, which focus primarily on what Congress could do:
Per a report from CNN’s Jim Acosta, Kavanaugh’s views on criminal investigations and the executive office were in fact considered in the Trump team’s review of his candidacy for the nomination.
Among Democrats, New Jersey Sen. Cory Booker has been among the most vocal on concerns about Kavanaugh’s approach to presidential power — though more and more lawmakers have begun subscribing to this argument, including Schumer.
“Mr. Kavanaugh, is the president above the law?” Schumer asked during a Tuesday press briefing.
Booker reiterated his criticism during the briefing, scoffing at how this decision has shaken out. “The person [Trump has] selected was the only person amidst all of these individuals on his much-talked about list,” he said, “the only person that has clearly stated, ‘Hey, Mr. President, in effect, we will give you immunity. I will be your shield.’”
Booker has been pushing the idea that no Trump nominee should be able to move through the confirmation process as long as the special counsel’s Russia investigation is ongoing. Given the possibility that elements of the investigation could wind up in front of the Supreme Court, Booker has said that Trump’s ability to handpick a justice who favors him could be a massive conflict of interest.
Vermont Sen. Bernie Sanders, in his statement on Monday, expressed qualms about Kavanaugh’s approach to the executive office as well.
“Kavanaugh, contrary to 200 years of Supreme Court precedent, believes a president ‘may decline to enforce a statute… when the president deems the statute unconstitutional,’” Sanders wrote as part of his litany of concerns. “I do not believe a person with those views should be given a lifetime seat on the Supreme Court.”
Abortion rights are widely perceived as an emotionally charged issue that both galvanizes the Democratic base — and serves as a potential point of common ground with Republican moderates like Sens. Susan Collins (ME) and Lisa Murkowski (AK). The preservation of Roe v. Wade has long been seen as a defining issue in the Supreme Court fight, making it a key part of Democrats’ arsenal as they seek to take Kavanaugh down.
Schumer himself pressed Kavanaugh on abortion rights during the judge’s 2006 confirmation hearing for the DC Circuit, asking if he believed that Roe v. Wade was an “abomination.”
Kavanaugh said he would be committed to following the precedent established by Roe “faithfully and fully,” but declined to offer his personal views on the case. As Schumer indicated in a July New York Times op-ed, he’s skeptical of such commitments to precedent.
Citing the recent Janus ruling, which overturned 41 years of precedent and gutted the power of public-sector unions, Schumer argues that “settled law is only settled until a majority of the Supreme Court decides it is not.”
More recently, Kavanaugh dissented against a majority opinion in a 2017 DC Circuit case, which allowed an undocumented teenager to take temporary leave from federal custody in order to obtain an abortion. As NBC News points out, Kavanaugh didn’t directly question the teenager’s right to an abortion, but disagreed with her ability to access “an immediate abortion on demand” and wrote that the majority had “badly erred.”
Democrats are seizing on Kavanaugh’s murky record on the issue as well as his recent dissent. “There’s every reason to believe he would overturn Roe,” California Sen. Dianne Feinstein said during a rally in front of the Supreme Court on Tuesday.
Kavanaugh has a definite record in his apparent stance on large corporations and limiting potential regulation of them. His pro-business approach is highlighted in a number of rulings, including one opinion in which he questioned the constitutionality of the Consumer Financial Protection Bureau.
Progressives including Sanders and Massachusetts Sen. Elizabeth Warren have already begun sounding the alarm on this subject. “Kavanaugh will be a rubber-stamp for an extreme, right-wing agenda pushed by corporations and billionaires,” Sanders said in a statement on Monday. Warren, meanwhile, emphasized the threat that he could pose to the CFPB, an agency she helped establish.
As Michael Bobelian writes for Forbes, Kavanaugh has favored giving corporations a much longer leash when it comes to industry rules on issues as varied as net neutrality and pollution standards. He’s also expressed a healthy skepticism about what really falls into the purview of independent agencies:
The White House has wasted no time touting this track record, according to Politico. “Judge Kavanaugh protects American businesses from illegal job-killing regulation,” a Monday evening email from the administration said. In its messaging about his nomination, the White House also emphasized his work curbing the reach of independent federal agencies.
Kavanaugh himself has written: “Because of their massive power and the absence of Presidential supervision and direction, independent agencies pose a significant threat to individual liberty and to the constitutional system of separation of powers and checks and balances.”
Politico noted that the administration called out his support for deregulation across a range of issues: “The White House wrote that Kavanaugh has overruled federal regulators 75 times on cases involving clean air, consumer protections, net neutrality and other issues.
