Ethics and Democracy

Why We Must Stop Kavanaugh From Becoming Trump’s Next Supreme Court Justice


It’s happened: Trump has announced his nominee to replace Justice Anthony Kennedy on the Supreme Court. On July 9th, Trump nominated Brett Kavanaugh to the Supreme Court and set the stage for a monumental shift in the Court’s makeup. If Trump is successful at getting Kavanaugh confirmed, the Court will work to preserve the Trump agenda for decades to come.

Key issues that affect us all hang in the balance, including reproductive rights, access to health care, LGBTQ rights, environmental protections, and much more. Further, the next Supreme Court justice could rule on cases involving Trump himself, whether resulting from the Mueller investigation or otherwise.

Brett Kavanaugh is one of the most cravenly partisan choices Trump could have made. He has been called the “Forrest Gump of Republican politics” because he always seems to show up in high-profile far-right conspiracy theories and political battles.

Here’s what you need to know about his nomination to the Supreme Court.

What’s At Stake

Justice Kennedy was known for often (but not always) being the swing vote on the Court and serving as a moderating voice. As Trump’s nominee, Kavanaugh is a direct threat to previously-settled norms and advances in the rights of marginalized communities. Here’s what’s at stake if Kavanaugh is confirmed to replace Kennedy as the next Supreme Court Justice.

Our Rights: Reproductive Justice, Access to Affordable Health Care, and LGBTQ Equality

Something important to keep in mind: Just by the fact that Kavanaugh has been nominated, we already know two key things about them.

Trump has already told us what he wants out of a Supreme Court justice. His “short list” of potential nominees was written by far-right activists, with two key criteria.

First, Trump has promised that Roe v. Wade would be overturned “automatically...because I will put pro-life justices on the court.”

The Federalist Society—which created the “short list” of judges that Trump chose from—has advocated for overturning Roe since the organization’s founding in 1982. (Kavanaugh is actually a long-time member of the Federalist Society.) Should Kavanaugh be confirmed, the ability of millions of people (particularly lower-income women, women of color, and members of the LGBTQ community) to access abortion and other reproductive care would be in jeopardy.

Kavanaugh has already used his place on the bench to block access to abortion services, most notably in Garza v. Hargan, where he attempted to deny a teenager in the Trump administration’s custody access to an abortion. In a recently unearthed speech to a far-right audience, Kavanaugh praised the dissent in Roe v. Wade, indicating he thought it was decided incorrectly.

Second, Trump has made clear that he is seeking a Supreme Court justice hostile to the Affordable Care Act, and that his justices will “do the right thing...on Obamacare.”

After the Trump administration gutted the individual mandate in the Tax Scam, 20 states sued to overturn the ACA. Trump’s Department of Justice announced in June that they would not defend major portions the law in court, including provisions concerning pre-existing conditions. Thus, the fate of health care coverage for millions of Americans could lie once more in the hands of the Supreme Court. Trump has already indicated he is choosing a justice who will deal a fatal blow to the ACA, and we should believe him.

As a member of the D.C. Circuit Court of Appeals, Judge Kavanaugh has already taken shots at the ACA. He wrote a lengthy opinion asserting that presidents can decline to enforce laws that they think are unconstitutional, even if courts disagree. Combined with Trump's refusal to enforce portions of the ACA, Kavanaugh’s presence on the Supreme Court would endanger access to affordable health care for millions of Americans.

Further, Kavanaugh will dramatically shift the Court’s balance, placing LGBTQ rights in jeopardy. While on the Supreme Court, Anthony Kennedy was often the deciding vote in advancing rights for gay and lesbian Americans. He authored four major decisions, including striking down laws criminalizing same-sex conduct and affirming marriage equality as a constitutional right. If confirmed, Kavanaugh will dramatically shift the balance of the Court by replacing swing voter Kennedy with an extreme justice, placing the far-right conservatives in the majority.

This shift will threaten these hard-won advances, and will pose a threat to future pushes for LGBTQ equality, from nondiscrimination to equal rights for transgender Americans.

Protecting the Wealthy and Powerful Instead of All of Us

A Supreme Court with five far-right extreme justices will side with the wealthy and powerful, instead of protecting the rights of workers, consumers, and all Americans.

Judge Kavanaugh has frequently used his place on the bench to enhance the power of corporations and the wealthy. He has asserted that the Consumer Financial Protection Bureau, which protects consumers from the predatory practices of banks, credit card companies, and student loan servicers, is unconstitutional. He has sided with corporations that deny their workers collective bargaining rights and protections against workplace discrimination. Further, he has ruled against net neutrality, siding with big telecommunications companies in an effort to undermine the free and open internet as we know it.

Core Protections to the Environment Are In Danger

An extreme right-wing Court will be hostile to environmental protections, placing EPA regulations and efforts to curb climate change in peril.

Brett Kavanaugh is considered one of the most anti-environment judges in America. He has consistently ruled against EPA regulations aimed at curbing pollution and harmful emissions. He has also ruled against efforts to combat climate change. The Supreme Court has already upheld one of his anti-environment opinions, paving the way for a generation of environmental damage if he were to join the conservative justices to form a majority on the Court.

Holding Trump Accountable for Threats to Our Democracy

The next Supreme Court justice very well may hear cases pertaining to Trump himself. Trump and his enablers have advanced numerous ludicrous arguments designed to derail Special Counsel Robert Mueller’s investigation and shield Trump from being held accountable for corruption, abuse of power, and obstruction of justice.

Whether resulting from the Mueller investigation or otherwise, it’s likely that the Supreme Court will eventually weigh in on these questions. This means that Kavanaugh is likely the person who will decide whether Trump is held accountable for his corruption and crimes.

Kavanaugh was a key author of the infamous Starr report during the Clinton administration, and has expressed numerous opinions about the role of a Special Counsel (such as Robert Mueller). He does not believe that a sitting president can be indicted, and believes presidents should have wide latitude to hire and fire special counsels. This does not bode well for the Mueller investigation.

Additionally, Kavanaugh has already caused damage to our democracy. A Russian company indicted by Special Counsel Mueller cited Kavanaugh’s own words—quoting extensively from one of his rulings allowing political spending by foreign nationals—to justify its interference in our 2016 elections.

Bottom Line

When Brett Kavanaugh was first nominated by George W. Bush in 2003, he was such a controversial nominee that he wasn't confirmed by the Senate until 2006.

At the time, Senator Schumer (now Minority Leader of the Senate), remarked, "You have been the ‘go to’ guy among young Republican lawyers appearing at the epicenter of so many high-profile controversial issues in your short career, and it is only natural that such a record would give many Senators pause...”

Additionally, Kavanaugh’s previous rulings in support of the government’s mass electronic surveillance programs show that he would likely side against Americans’ rights to privacy, an issue which has caught the eye of libertarian-leaning Senators like Rand Paul.

From reproductive rights to access to health care and more, it’s clear that Kavanaugh would rubber stamp Trump’s agenda for decades to come if confirmed.

So, What Can You Do?

Now that we know who Trump’s nominee is, it’s time for senators to know that he is unacceptable and that they must immediately commit to vote against his confirmation.

First, take a look at our two-step strategy on how to #SaveSCOTUS.

Then, from now until the confirmation, flood your senators’ offices with phone calls.

Finally, sign up to join our massive phone bank to flip the Senate that will run for the last 100 days before the midterms.

Join Our Phone Bank To Flip The Senate

Sample Call Scripts

For Senators Manchin, Heitkamp, and Donnelly

Caller: Hello! My name is ___ and I’m calling from [part of state]. Can you please tell me how Senator ___ plans to vote on the Brett Kavanaugh nomination?

Staffer: The Senator is [keeping an open mind / waiting until he has a hearing in the Judiciary Committee / waiting until they can meet in person] in order to make a decision.

Caller: I appreciate that, but that’s very disappointing. We know more than enough about Judge Kavanaugh already. Confirming him to the Supreme Court would put reproductive rights, LGBTQ rights, the environment, and health care for thousands of people in our state at risk.

Staffer: The Senator shares those concerns, but he/she wants to let the process play out before he/she makes a final decision.

Caller: Again, there is no need to wait. Too much hangs in the balance to let Trump fill this seat with Judge Kavanaugh. We know he’s ruled in the past to dismantle net neutrality, sabotage the Affordable Care Act, and block women from having abortions. He’s also considered one of the most anti-environment judges in America. He wouldn’t have been on Trump’s list of 25 potential nominees in the first place if Trump weren’t confident that he would strike down the Affordable Care Act, overturn a woman’s right to choose or harm LGBTQ rights. Nothing in Judge Kavanaugh’s record demonstrates otherwise.

Staffer: I’ll make sure the Senator gets your message.

Caller: Thank you—and please take down my name and phone number so you can let me know what the Senator decides to do. It is very important to me that Senator ___ opposes this nominee.

For Senator Schumer

Caller: Hello! My name is ___ and I’m calling from [part of state]. Can you please tell me what Senator Schumer plans to do about the Brett Kavanaugh nomination?

Staffer: Hello, nice to talk with you! Senator Schumer plans to vote against the Kavanaugh nomination.

Caller: I’m glad to hear that, but it isn’t enough. I expect Senator Schumer to whip the entire caucus to vote no. The only way we can prevent the Supreme Court from swinging to the far right for decades to come is if Democrats hold together and vote no. In order to give us a fighting chance to stop this nomination, Senator Schumer must hold all of his members together against Judge Kavanaugh.

Staffer: Senator Schumer agrees that we must not let the Supreme Court become too extreme. But he has very little control over how other Senators vote.

Caller: Senator Schumer is the leader of the Senate Democrats and anything less than Democratic unity is unacceptable. There’s just too much at stake to let Trump fill this seat with Judge Kavanaugh. We know he’s ruled in the past to block women from having abortions and to sabotage the Affordable Care Act. He wouldn’t have been on Trump’s list of 25 potential nominees in the first place if Trump weren’t confident that he would strike down the Affordable Care Act, overturn a woman’s right to choose or harm LGBTQ rights. Nothing in Judge Kavanaugh’s record demonstrates otherwise.

Staffer: Senator Schumer shares your concern about those issues. I’ll make sure Senator Schumer gets your message.

Caller: Thank you. If Senator Schumer shares my concern, he will whip as hard and as long as he needs to hold the caucus together. I will be watching to see if Senator Schumer leads his caucus to unity or not.

For all other Democratic Senators

Caller: Hello! My name is ___ and I’m calling from [part of state]. Can you please tell me how Senator ___ plans to vote on the Brett Kavanaugh nomination?

Staffer: Hello, nice to talk with you! The Senator plans to vote against the Kavanaugh nomination. The stakes are too high.

Caller: Thank you! I’m very glad to hear that. Too much hangs in the balance to let Trump fill this seat Judge Kavanaugh. We know he’s ruled in the past to block women from having abortions and to sabotage the Affordable Care Act. He’s also considered one of the most anti-environment judges in America and has ruled against protecting net neutrality. He wouldn’t have been on Trump’s list of 25 potential nominees in the first place if Trump weren’t confident that he would strike down the Affordable Care Act, overturn a woman’s right to choose or harm LGBTQ rights. Nothing in Judge Kavanaugh’s record demonstrates otherwise.

Staffer: Thank you, the Senator agrees with you. I’ll make sure they get your message.

For Senator Murkowski

Caller: Hello! My name is ___ and I’m calling from [part of state]. Can you please tell me how Senator Murkowski plans to vote on the Brett Kavanaugh nomination?

Staffer: The Senator intends to wait until Judge Kavanaugh has had a hearing in the Judiciary Committee and she’s met with him personally to make a decision.

Caller: I can understand that, but we know more than enough about Judge Kavanaugh already. Confirming him to the Supreme Court would put reproductive rights, LGBTQ rights, and health care for thousands of Alaskans at risk.

Staffer: The Senator shares those concerns, but she wants to let the process play out before she makes a final decision.

Caller: Again, there is no need to wait. Judge Kavanaugh wouldn’t have been on Trump’s list of 25 potential nominees if Trump weren’t confident that he’d overturn the Affordable Care Act. If that happened, the 107,000 Alaskans with pre-existing conditions and 15,000 Alaskans relying on Medicaid would be put at risk. We also know that he’s ruled in the past to block women from having abortions. He is hostile to women’s reproductive rights, which Senator Murkowski has previously stood up to protect. I want Senator Murkowski to honor that record and vote no.

Staffer: Thank you. I’ll make sure the Senator gets your message.

Caller: Thank you—and please take down my name and phone number so you can let me know what she decides to do.

For Senator Collins

Caller: Hello! My name is ___ and I’m calling from [part of state]. Can you please tell me how Senator Collins plans to vote on the Kavanaugh nomination?

Staffer: The Senator intends to wait until Judge Kavanaugh has had a hearing in the Judiciary Committee and she’s met with him personally to make a decision.

Caller: I can understand that, but we know more than enough about Judge Kavanaugh already. Confirming him to the Supreme Court would put reproductive rights, LGBTQ rights, and health care for thousands of Mainers at risk.

Staffer: The Senator shares those concerns, but she wants to let the process play out before she makes a final decision.

Caller: Again, there is no need to wait. Judge Kavanaugh wouldn’t have been on Trump’s list of 25 potential nominees if Trump weren’t confident that he’d overturn the Affordable Care Act. If that happened, the 229,000 Mainers with pre-existing conditions and 57,000 Mainers relying on Medicaid would be put at risk. We also know that he’s ruled in the past to block women from having abortions. He is hostile to women’s reproductive rights, which Senator Collins has previously stood up to protect.

Staffer: Senator Collins has already said she will not support a nominee that has demonstrated hostility to Roe v. Wade.

Caller: That’s a clever standard, but it’s meaningless. Just because Judge Kavanaugh hasn’t explicitly ruled on Roe v. Wade doesn’t mean he isn’t hostile to it. There is nothing in his record that demonstrates otherwise. I want Senator Collins to honor her record defending health care for Mainers and for women and vote no.

Staffer: Thank you. I’ll make sure the Senator gets your message.

Caller: Thank you—and please take down my name and phone number so you can let me know what she decides to do.

For all other Republican Senators

Caller: Hello! My name is ___ and I’m calling from [part of state]. Can you please tell me how Senator ___ plans to vote on the Kavanaugh nomination?

Staffer: The Senator is going to support the Kavanaugh nomination.

Caller: That’s terrible. Too much hangs in the balance to let Trump fill this seat with Judge Kavanaugh. We know he’s ruled in the past to block women from having abortions. He wouldn’t have been on Trump’s list of 25 potential nominees in the first place if Trump weren’t confident that he would strike down the Affordable Care Act, overturn a woman’s right to choose or harm LGBTQ rights. Nothing in Judge Kavanaugh’s record demonstrates otherwise.

Staffer: The Senator disagrees with you. He/she believes we need to fill this seat with a qualified and principled conservative like Judge Kavanaugh.

Caller: Dismantling health care, LGBTQ rights, or a woman’s right to choose would hurt thousands of people in our state, and Senator ___ will be complicit. I am extremely disappointed that Senator ___ is once again nothing but a rubber stamp for Donald Trump.