Judge Brett Kavanaugh Must Not Be Confirmed

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The most precious of our constitutional rights—and the most vulnerable—are those protecting uniquely human, personal rights of individual privacy, autonomy, and dignity. These rights are protected in well-settled federal jurisprudence and, textually, in the constitutions and in the case law of many States—mine, Montana, included.

However, when fascist regimes are birthed, these rights (along with freedom of the press) are the first to be attacked. And, not surprisingly so. Fascists need scapegoats and false causes to inflame the basest instincts of the populace which they seek to control. To that end, tyrants have, time after time, attacked, demonized and scapegoated marginalized populations (women, LGBTQ people, the disabled, the mentally ill, racial and religious minorities, and immigrants). Fascists stir up rancor, bigotry, and hatred against these populations in order to give their followers a common enemy to blame for typically manufactured, societal economic, social and moral ills.

Sadly, this, too, is the play-book of the Trump administration. Trump has targeted each of these populationsbelittling, mocking, and, in some cases, labeling them as criminals (or worse).

President Trump controls the majority party in the second branch, a party which slavishly supports his every whim. Indeed, the ovine, lickspittle Congress has utterly failed in its duty to check and balance the Executive.

Unfortunately, Trump is now poised to solidify his control over the third branch of government, the judiciary. To lose this check and balance, however, is nothing short of disastrous. The courts have historically protected and enforced the vulnerable constitutional rights mentioned above. And, to the extent Trump controls the courts with his appointments, in general, and the Supreme Court, in particular, his control will effectively last for generations—meaning that Americans will continue to suffer under Trump’s inimical policies and philosophy for decades after he leaves office.

Trump already has four Justices firmly in his corner—Chief Justice Roberts, and Justices Alito, Thomas, and Gorsuch. With Justice Kennedy’s resignation, Trump aims to cement his control over the Supreme Court with the appointment of Judge Brett Kavanaugh.

Judge Kavanaugh must not be confirmed. His track record on civil rights and on cases which are likely to adversely impact the aforementioned vulnerable and uniquely personal, human rights is atrocious. For example:

In short, Judge Kavanaugh has demonstrated a philosophical commitment to Trump’s anti-civil rights, pro-big business, racist, xenophobic, homophobic and misogynistic views and policies. If confirmed, Judge Kavanaugh, joined by his four conservative colleagues, will insure that the worst of Trump will become the law of the land and live on for generations to come.

If there is any hope of keeping the judiciary, as a constitutional check and balance on the Executive, the Senate must rise above partisanship and decline to confirm Judge Kavanaugh’s nomination.

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About the author

James C. Nelson

James C. Nelson (Ret) was an associate justice of the Montana Supreme Court. He took office in May of 1993, following an appointment by then-governor Marc Racicot, and he retired on December 31, 2012.

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