Opinion: Kavanaugh will undermine progress made on justice for all
By Eva Paterson
San Francisco Chronicle
Sept. 5, 2018
Brett Kavanaugh has been nominated by President Trump to fill the vacancy created by the premature retirement of Justice Anthony Kennedy. Civil rights activists, abortion rights advocates, the disability rights community, and those concerned with limiting the authority of the executive branch are alarmed by this nomination. As an African American civil rights attorney who has been practicing law since 1975, I am certain that if Kavanaugh is confirmed, the hands of the judicial clock will be turned back to the ’50s — and by that I mean the 1850s.
Next year marks the 400th anniversary of when kidnapped black Africans were first brought to these shores as slaves. From the moment we arrived, we knew that the monstrous actions of slave owners and their enablers were unjust. Steven Spielberg’s movie “Amistad” depicted the story of captured Africans who gained their freedom as a result of litigation. We also know the sad stories of failed attempts in the federal courts: Dred Scott and Plessy vs. Ferguson, rulings that reflected calloused judges whom history has shown to be racist and wrong.
My personal hero is Charles Hamilton Houston, the architect of the legal strategy that led to Brown vs. Board of Education, the decision that desegregated public schools. I was born in Texas when separate-but-equal was the law of the land. My dad was an Air Force officer, so my brothers and I went to fully desegregated schools in England, France and Illinois. The education I received enabled me to enter Northwestern University in 1967, skipping freshman English on the strength of my test score — a testament to the Brown decision.
White supremacists, however, did not like Brown vs. Board of Education. They put up billboards demanding to impeach Earl Warren, the Supreme Court chief justice. More sophisticated opponents of racial equality took a strategic approach. In 1971, future Supreme Court Justice Lewis Powell wrote a manifesto on behalf of the U.S. Chamber of Commerce, complaining that the courts were too harsh on corporations and proposed a comprehensive plan to correct that. He was nominated to the U.S. Supreme Court by Richard Nixon, a disgraced president who nonetheless got to put his minions on the high court. Powell kept the memo secret during the confirmation hearings so we, the people, had no idea of his extremist ideology. Sound familiar?
In 1980, the Reagan Justice Department under Attorney General Edwin Meese issued a series of papers outlining ways to stop the federal courts from advancing the rights of people of color. These papers, called “The Constitution in the Year 2000,” talked about making sure the federal courts reverse rulings that helped people of color.
Now we are faced with Trump’s handpicked nominee, Kavanaugh. Here are some of the dangers posed by seating him on the high court:
He has expressed a view that sitting presidents are above the law; thus he is likely to give Trump a pass on all his misdeeds and is likely to undermine the authority of special counsel Robert Mueller.
He is hiding more than 1 million documents, primarily generated when he worked for President George W. Bush, from the Senate Judiciary Committee and the public.
According to a report from the NAACP Legal Defense Fund, Kavanaugh will:
- Make it harder to remedy racial discrimination
- Make it harder to dismantle the new Jim Crow of mass incarceration
- Limit access to justice for low-income people and people of color
- Prioritize private profits over communities of color hurt by environmental injustice and climate change
- Undermine justice for immigrants and foreign nationals while deferring to our white supremacist administration
- Roll back advances in the area of reproductive rights, disability justice, and LGBTQ equality.
Kavanaugh reportedly told Sen. Susan Collins, R-Maine, not to be concerned about Roe vs. Wade, which guarantees abortion rights, because it is settled law. That is absurd, because the Supreme Court decides what constitutes “settled law.” The conservative legal movement is hell bent on overturning settled law and Kavanaugh is the perfect agent to accomplish that goal.
Please call California’s Sens. Dianne Feinstein and Kamala Harris and urge them to vote no. If you live outside California, we really need calls to Sens. Joe Donnelly, D-Ind., Heidi Heitkamp, D-N.D., Claire McCaskill, D-Mo., Doug Jones, D-Ala., Joe Manchin, D-W.Va., Lisa Murkowski, R-Alaska, and Collins. The democracy you save may be your own.
Eva Paterson is the president of the Equal Justice Society, an Oakland nonprofit that works to transform the nation’s consciousness on race through law, social science and the arts.