- Ian Millhisersenior fellow at the Center for American Progress Action Fund and the editor of ThinkProgress Justice. He is the author of the book Injustices: The Supreme Court’s History of Comforting the Comfortable and Afflicting the Afflicted.
President Trump has nominated federal Judge Brett Kavanaugh to fill Anthony Kennedy’s seat on the high court. Kavanaugh has deep ties to the Republican Party and will push the Supreme Court further right if he is confirmed. Kavanaugh served as a senior aide under President George W. Bush in the White House Counsel’s Office. He has similar credentials to Supreme Court Justice Neil Gorsuch. Both clerked for Anthony Kennedy, and both are backed by the Federalist Society and Heritage Foundation, who drew up a list for Trump in 2016 of suitable right-wing judges to consider for the Supreme Court. We speak with Ian Millhiser, senior fellow at the Center for American Progress Action Fund and the editor of ThinkProgress Justice. His latest piece is headlined “Who is Brett Kavanaugh, Trump’s pick to replace Anthony Kennedy?”
More from this Interview
- Part 1: Who Is Brett Kavanaugh? Inside the Right-Wing History of Trump’s Supreme Court Nominee
- Part 2: “It’s a Very Scary Time for Women”: Cecile Richards on Brett Kavanaugh and the Future of Roe v. Wade
- Part 3: ACLU’s David Cole on the Critical Questions Lawmakers Need to Ask Judge Brett Kavanaugh
- Part 4: LGBT & Healthcare Advocates Warn Kavanaugh Confirmation Could Mean End of Affordable Care Act
- Part 5: Lives Are At Stake: The Struggle to Stop Trump’s Right-Wing Takeover of the Supreme Court
- Part 6: ACLU vs. Trump: David Cole on the Fight to Reunite Children Separated from Parents at Border
JUAN GONZÁLEZ: In a move to push the Supreme Court further to the right, President Trump has nominated federal Judge Brett Kavanaugh to fill Anthony Kennedy’s seat on the high court. If Kavanaugh is confirmed, it would create a bloc of five right-wing justices, likely making it the most conservative court since the 1930s. Critics warn this could lead to a major rollback of civil rights, environmental regulations, gun control measures, voting rights and reproductive rights, including possibly overturning Roe v. Wade.
While running for president, Trump openly vowed to only nominate justices who will overturn Roe v. Wade. Last year, Kavanaugh ruled against an undocumented teenager who sought to have an abortion while in federal detention. He said allowing the abortion would make the government, quote, “complicit” in something that is morally objectionable.
AMY GOODMAN: Brett Kavanaugh has also argued that sitting presidents should be shielded from criminal or civil investigations. In a 2009 article for the Minnesota Law Review, Kavanaugh wrote, “I believe that the President should be excused from some of the burdens of ordinary citizenship while serving in office,” unquote. He went on to write, “The indictment and trial of a sitting President, moreover, would cripple the federal government.”
On Monday night, President Trump urged the Senate to quickly approve Kavanaugh’s nomination.
PRESIDENT DONALD TRUMP: The rule of law is our nation’s proud heritage. It is the cornerstone of our freedom. It is what guarantees equal justice. And the Senate now has the chance to protect this glorious heritage by sending Judge Brett Kavanaugh to the United States Supreme Court.
JUAN GONZÁLEZ: Brett Kavanaugh has deep ties to the Republican Party. Before becoming a federal judge, he served as a senior aide under President George W. Bush in the White House Counsel’s Office. While at the White House, he met his wife, who was Bush’s personal secretary. Kavanaugh also worked for Kenneth Starr, the independent counsel who investigated President Bill Clinton in the 1990s. Kavanaugh, like Justice Neil Gorsuch, clerked for Anthony Kennedy. And like Gorsuch before him, Kavanaugh is backed by the Federalist Society and the Heritage Foundation, both of which drew up a list for Trump in 2016 of suitable right-wing judges to consider for the Supreme Court. On Monday night, Kavanaugh said he was honored to be considered for Kennedy’s seat.
PRESIDENT DONALD TRUMP: Tonight, it is my honor and privilege to announce that I will nominate Judge Brett Kavanaugh to the United States Supreme Court.
AMY GOODMAN: On Monday night, protesters gathered outside the Supreme Court soon after President Trump picked Brett Kavanaugh. Speakers included Senator Elizabeth Warren of Massachusetts.
SEN. ELIZABETH WARREN: He is hostile to healthcare for millions of Americans. He is opposed to the Consumer Financial Protection Bureau and corporate accountability. He is opposed to the rights of women, workers and consumers. He is hostile to just about anyone who isn’t wealthy and powerful. He thinks presidents like Trump should be above the law. And conservatives—
SEN. ELIZABETH WARREN: And conservatives know he would overturn Roe v. Wade.
PROTESTERS: Boo! Shame! Shame! Shame!
SEN. ELIZABETH WARREN: I will be voting no.
AMY GOODMAN: Senator Elizabeth Warren, speaking outside the Supreme court Monday night, where about a thousand people gathered. We’ll spend the rest of today’s show looking at the nomination of Brett Kavanaugh to the Supreme Court. We’ll begin in Washington, D.C., where we’re joined by Ian Millhiser, senior fellow at the Center for American Progress Action Fund, editor of ThinkProgress Justice. He’s the author of the book Injustices: The Supreme Court’s History of Comforting the Comfortable and Afflicting the Afflicted.
Ian Millhiser, welcome to Democracy Now! Can you give us a biography of President Trump’s choice to replace Anthony Kennedy, Brett Kavanaugh?
IAN MILLHISER: Sure. I mean, this guy looks like he was grown in a vat by the Republican establishment. He literally went to the same elite prep school with Neil Gorsuch. I think they might have even been in the exact same class. You know, he graduated from Yale twice, clerked for Justice Kennedy. He worked for Ken Starr, the Clinton inquisitor. He worked at an elite law firm, was a very senior aide to President Bush. And then, for these last—this last decade, he’s been on the D.C. Circuit, the second-most powerful court in the country, where he was a consistent antagonist of environmental regulations, where he said that he would have struck down—he didn’t just say he would strike down net neutrality, he said that net neutrality violates the First Amendment, where he was a big proponent of gun rights and moved to strike down D.C. gun laws. So, on issue after issue—abortion, birth control—he’s got a really thick record, and he’s very consistently voted with the right on issue after issue.
AMY GOODMAN: But if you can tell us the positions also that he has occupied over time, specifically, working with President George W. Bush—
IAN MILLHISER: Right.
AMY GOODMAN: —involved in his actual election, in the recount?
IAN MILLHISER: Right. I mean, I believe he may have even worked on the Bush v. Gore case. He went on to become what’s called staff secretary in the White House, which is a very important job. The staff secretary handles every piece of paper that crosses the president’s desk. And I think that’s significant, because the thing about Judge Kavanaugh isn’t just that he’s very right-wing, and isn’t just that he wants to dismantle much of the federal government. It’s that he’s extraordinarily smart. And through that experience, handling literally every piece of paper that crossed President Bush’s desk, he has a very sophisticated understanding of how the government works, you know, where the leverage points are, where if he strikes down this regulation here, it leads to a lot of the EPA unraveling. And so, he is going to be very, very effective in his mission of dismantling a great deal of the administrative state.
JUAN GONZÁLEZ: And, Ian, you’ve written also about his role in what you call weaponizing the First Amendment, some of the cases that he’s decided really extending First Amendment rights to groups that normally we wouldn’t consider the First Amendment applying to. Specifically, you talked about United States Telecom v. FCC—
IAN MILLHISER: Right.
JUAN GONZÁLEZ: —his impact on net neutrality, as well as other cases—
IAN MILLHISER: Right.
JUAN GONZÁLEZ: —that seem to bend over backwards to give First Amendment rights to corporations.
IAN MILLHISER: Right. I mean, this is something we’ve seen. It’s a major project of the Roberts Court. You know, just recently, they nuked a lot of the funding that public-sector unions are going to be able to receive. And they did that under the theory that when unions bargain, that is a First Amendment matter, and so, therefore, there can be strict restrictions on the union. The same or very similar logic is what Judge Kavanaugh used when he argued that net neutrality is unconstitutional. His claim was that if you regulate the internet service provider’s ability to not slow down certain content, then that is regulating their ability to determine which speech you get through their pipelines, and so that’s a violation of the First Amendment. I suspect we’re going to see this reasoning. I mean, again, this is a major project of the Roberts Court, is to transform the First Amendment, which is supposed to be about free speech, into a vehicle for deregulating business. And what he has shown in that net neutrality case is he is eager to jump onto this project, and probably has some new ideas for other places they can go.
AMY GOODMAN: Let’s go to Supreme Court justice nominee Brett Kavanaugh speaking last night at the White House.
JUDGE BRETT KAVANAUGH: My judicial philosophy is straightforward: A judge must be independent and must interpret the law, not make the law. A judge must interpret statutes as written. And a judge must interpret the Constitution as written, informed by history and tradition and precedent. For the past 11 years, I’ve taught hundreds of students, primarily at Harvard Law School. I teach that the Constitution’s separation of powers protects individual liberty.
AMY GOODMAN: Supreme Court justice nominee Brett Kavanaugh, speaking last night after President Trump announced his nomination. Ian Millhiser, he was chosen by the Federalist Society. That’s the list that President Trump was using to make his choice. Explain what the Federalist Society is.
IAN MILLHISER: Sure. So, the Federalist Society is an organization of conservative lawyers. It’s been around for a really long time. And what’s interesting about the Federalist Society is it sort of benefits from this cycle where everyone knows if you want a judgeship from a Republican president or if you want a job in a Republican administration, the way to do that is you get a job or you get involved in the Federalist Society when you’re a law student, you ingratiate yourself to them, and then they dole out favors. And so, because everyone knows that they’re the ones that can dole out those goodies, it’s this self-perpetuating cycle, where people get involved with the organization because they know it’s the place to go, and that means that the best conservative lawyers are getting involved with it.
The mechanism this has provided is that the Federalist Society has moved very, very far to the right in recent years. You know, they were one of the incubators for this idea that the Affordable Care Act is unconstitutional. Recently, they’ve grown obsessed with dismantling federal agencies like the EPA or the Department of Labor. And those were all ideas that just weren’t on the table 10 years ago. So what’s happened is, the Federalist Society has become the place where if you’re ambitious and you want to get a good job in a Republican administration and you’re a lawyer, you have to go through them. And they take more and more right-wing positions, which doesn’t just mean that they’re taking those positions. It means that every ambitious Republican lawyer in the country feels like they have to take these extreme positions, or they’re just not going to advance their career.
JUAN GONZÁLEZ: I want to turn to Leonard Leo, the president of the Federalist Society, who was appearing on CBS This Morning last week. He was questioned by Norah O’Donnell.
NORAH O’DONNELL: But you have really been credited, along with the Federalist Society, of being involved in, really, the picks for the last three Supreme Court justices—Roberts, the chief; Alito; and Gorsuch. Would you say that that’s true?
LEONARD LEO: Well, presidents always make these choices.
NORAH O’DONNELL: Yes.
LEONARD LEO: But there’s no question that there’s been a long-standing movement in the United States to appoint judges to the court who are going to interpret the law as it’s written. And I’m a part of that, certainly.
NORAH O’DONNELL: Three conservatives on the court. Let me read this. This has been said about you, quote: “No one has been more dedicated to the enterprise of building a Supreme Court that will overturn Roe v. Wade than the Federalist Society’s Leonard Leo.” Do you believe, with this pick, replacing Kennedy could finally be the nail in the coffin of abortion rights?
LEONARD LEO: Roe v. Wade has been a scare tactic that’s gone back 36 years, all the way back to Justice Sandra O’Connor’s nomination to the court. And, you know, nothing has happened to Roe in that period of time. And for me it’s not about Roe v. Wade. For constitutional conservatives, that’s not what it’s about. It’s about interpreting the Constitution as it’s written, and basically interpreting the limits on government power, because that’s really the way to preserve human dignity in our country.
JUAN GONZÁLEZ: So, Ian, can you talk about Leonard Leo and specifically his role, the reports that he’s a member of the Knights of Malta, a secret right-wing organization within the Catholic Church, and his role specifically in the vetting of these nominees of the Republican presidents, and now especially President Trump, to the court?
IAN MILLHISER: Yeah, I mean, Leonard Leo is a very, very conservative guy, who sits very close to the apex of this Federalist Society network that I was just describing. And he just knows who everyone is. I mean, that’s his value to Republican presidents, is that when you become president, you have to fill literally thousands of jobs, and over the course of your presidency, potentially hundreds of judgeships, and most presidents just aren’t going to know like who’s the person who will make a good trial lawyer in Idaho, for example. Leonard Leo is the guy who knows who all those people are. He spent his entire career, you know, getting Scotch with these people and having breakfast with these people and getting to know who the reliable, consistently very conservative judges or lawyers are that he can then advise presidents to put on the bench. And so that’s why they use him.
I also want to push back against a few things that he said. I mean, first of all, of course Kavanaugh is going to overrule Roe v. Wade. I mean, they’ve got four votes already who are willing to uphold a Texas law that was just a sham law intended to shut down abortion clinics. Kavanaugh is going to be the fifth. He has criticized Roe v. Wade. He said that it was a freewheeling decision. He wrote an opinion just last year that used a very—took a very aggressive posture, said that the Trump administration could literally imprison women to delay their ability to have an abortion. So this is not a guy who’s going to stay his hand when it comes to Roe v. Wade. I think that Mr. Leo doesn’t—you know, wants to muddy the waters a bit, because there’s two Republican senators—Susan Collins and Lisa Murkowski—who claim to be pro-choice. And at the very least, they want to have deniability if they vote for Kavanaugh. But there’s no deniability here. This guy is the fifth vote to overrule Roe v. Wade, period.
AMY GOODMAN: And we’re going to talk more about that in our next segments. Ian Millhiser, we want to thank you for being with us, senior fellow at the Center for American Progress Action Fund, editor of ThinkProgress Justice. We’ll link to your piece, “Who is Brett Kavanaugh, Trump’s pick to replace Anthony Kennedy?” This is Democracy Now! Stay with us.