How Democrats Can Fight Brett Kavanaugh

(Bloomberg Opinion) -- Brett Kavanaugh, who is President Donald Trump’s nominee to the Supreme Court, has an unusually partisan background.

Kavanaugh, an appeals court judge who was nominated to replace retiring Justice Anthony Kennedy, worked for five years in the White House of President George W. Bush — two in the White House counsel’s office and three as Bush’s staff secretary controlling the flow of paperwork to and from the president. (Democrats are pressing for release of Kavanaugh’s White House documents. Republicans are resisting.)

Democrats may not be able to stop Kavanaugh’s confirmation. But given a slim possibility that they might take control of the Senate in January, it’s worth trying. If Democrats gained control of the Senate, they would likely honor the legacy of Republican Senate leader Mitch McConnell of Kentucky by refusing to hold hearings on another Trump court nominee.

If Kavanaugh’s nomination were to falter somehow, it wouldn’t be the end of the game. With a united party behind him, McConnell might be able to ram through a new nominee in the lame-duck session.

Regardless, Kavanaugh’s Senate confirmation hearings can be used to educational effect. First, Democrats should use his political background and his history on the Court of Appeals for the D.C. Circuit to establish Kavanaugh as what he very much appears to be: a Republican judge who will join a Republican majority on the court.

The partisan polarization of the court is a powerful vector of Republican policy. With a chaotic and deficient president and a deeply dysfunctional majority in the House, the Supreme Court represents the GOP’s most effective political arm in Washington.

Conservative policy that fails in Congress and in the states is advanced, five votes at a time, by the conservative activists on the court. The court will only grow more crucial to Republicans after Democrats regain power, sooner or later, in elective offices.

Establishing that Kavanaugh is a partisan Republican is the predicate to establishing what that means to key constituencies in advance of the midterm elections in November.

It won’t be hard to make the case that Kavanaugh further threatens abortion rights, and voters already connect the Supreme Court to that issue. For the non-rich, Kavanaugh’s ascension to the court means placing another pro-corporate, anti-labor vote on a court that already overflows with empathy for the travails of corporations. For those worried about Trump’s assault on democratic values, norms and functions, Kavanaugh should explain what kind of errant presidential behavior he’d be willing to abet on the court.

Perhaps Trump exercised an atypical degree of self-discipline and refrained from asking Kavanaugh for his personal loyalty. But Kavanaugh’s expansive view of executive prerogative comports uncomfortably well with Trump’s eagerness for immunity from prosecution.

Asking Kavanaugh about his discussions with Trump probably won’t reveal much. But it will allow Democrats on the Judiciary Committee to put Kavanaugh’s nomination in the context of Trump’s previous efforts to derail criminal investigations into his aides and himself. Kavanaugh’s character is not so much the point here. Trump’s is — along with the need for other branches of government, including one up for election in November, to check Trump’s corruption.

Finally, lest the nation’s ranks of moderate suburban women need additional cause to recoil from Trump, Kavanaugh’s record on guns is a rich source of concern. The Supreme Court’s 2008 Heller decision, written by Justice Antonin Scalia, declared an individual right to own firearms, a feat accomplished in part by overlooking the Second Amendment’s cumbersome contextual cue about a well-regulated militia.

The 5-4 ruling was a great legal victory for the gun movement. But it resolved little practically. Are prohibitions on semi-automatic rifles constitutional? What about concealed carry? Open carry? Those remain open legal questions.

Based on previous rulings, especially a lengthy dissent he wrote in a gun-rights case dubbed “Heller II,” Kavanaugh appears inclined to adopt the National Rifle Association’s vision of guns everywhere for anybody. He opposed a gun registration requirement in Washington, D.C., and stated that there is no distinction between a semi-automatic handgun and a semi-automatic rifle, a view that, if adopted by a Supreme Court majority, would effectively invalidate state and local bans on assault weapons.

Democrats should press Kavanaugh particularly on open carry — not with the hope that he would reveal his views but with the goal of explaining the stakes. Open carry is, among other things, a means by which gun-rights activists intimidate fellow citizens.

In 2014, parents in Georgia stopped their children’s Little League game because a man showed up carrying a gun. As one parent told an Atlanta television station: “He’s just walking around [saying] ‘See my gun? Look, I got a gun and there’s nothing you can do about it.’ He knew he was frightening people. He knew exactly what he was doing.”

Parents called 911, but police, too, could do nothing about it. Open carry is legal in Georgia. In Colorado in 2015, a 911 caller discovered the logical consequences of that. She called to report a man walking in her neighborhood with a rifle and was told that open carry was legal. Minutes later, the armed man murdered three.

It might be helpful to detail those cases in Kavanaugh’s Senate hearings and ask him whether the Second Amendment allows provision for public safety. There’s reason to believe, from Kavanaugh’s writing, that he believes public safety isn’t terribly relevant to gun rights. In any case, voters should know exactly what concealed carry, open carry — and a Supreme Court that endorses one or both — would mean for their neighborhoods and workplaces.

Scalia’s Heller decision confirmed an individual right to possess a handgun inside one’s home. Carrying guns in public, said UCLA law professor Adam Winkler, “is one of the great unresolved issues in Second Amendment jurisprudence.”

Relevant court cases are making their way toward the Supreme Court. If Kavanaugh is confirmed, the results could be disastrous for gun regulation. Democrats should make sure voters understand that.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Francis Wilkinson writes editorials on politics and U.S. domestic policy for Bloomberg Opinion. He was executive editor of the Week. He was previously a writer for Rolling Stone, a communications consultant and a political media strategist.

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