Tracking the latest developments in the fight for a fair America
Kavanaugh “reminded senators that he has no concern for people outside his rarefied social circle.”
Bangor Daily News, October 2, 2018
On September 27, Supreme Court nominee Brett Kavanaugh testified before the Senate Judiciary Committee to address Dr. Christine Blasey Ford’s credible sexual assault allegations against him. Since that hearing, much of the focus has been on Kavanaugh’s blatant lies. But Kavanaugh’s performance also laid bare what many had already known: Brett Kavanaugh acts cruelly toward those outside of his elite circle of friends and colleagues. In fact, Kavanaugh’s lack of empathy appears to extend to anyone without a country club membership. It is a central character trait – he has repeatedly demonstrated, throughout his life, a callousness that has no place on our highest court.
After a Senate hearing where Brett Kavanaugh responded to credible accusations of sexual assault by misleading senators about his past, shouting partisan conspiracy theories about Senate Democrats and the Clintons, and demonstrating a temperament completely unbefitting a Supreme Court Justice, Republicans have put a short hold on his nomination. Dr. Christine Blasey Ford’s testimony – a persuasive and heartbreaking account of her assault by Kavanaugh when she was fifteen years old – convinced at least one GOP Senator that the Senate Judiciary Committee had to “hit the pause button” and allow an FBI investigation.
While a supplemental FBI background check investigation is the bare minimum due diligence that should be provided to Dr. Blasey Ford and other survivors, it’s important to remember that the country has been here before. Twenty-seven years ago, the FBI launched an investigation into Anita Hill’s credible allegations of sexual harassment against Clarence Thomas. The investigation was wanting in almost every conceivable way, from an insufficient witness list to rank partisanship corrupting the process.
Thankfully, the country has come a long way since 1991 in terms of how we treat survivors of sexual violence. Women across America are sharing their stories – in texts, quiet conversations, and public displays throughout the country, processing their own trauma and personal experiences with sexual violence.
And yet, on Friday, the Trump Administration’s instructions to the FBI proved that we are about to repeat the mistakes of the past. The similarities between Trump’s apparent sham investigation of Brett Kavanaugh and the investigation of Clarence Thomas are striking.
Last week’s Senate Judiciary Committee hearings on Brett Kavanaugh’s nomination to the Supreme Court were marked by frustration and prevarication: Frustration on the part of Democrats whose pointed questions to the nominee and calls for documents were largely stonewalled, and prevarication on the part of Kavanaugh who avoided direct answers and made statements that were too often misleading and disingenuous.
Judge Kavanaugh, who serves on the DC Circuit Court of Appeals, told the ranking Democrat, Dianne Feinstein, that he considered the 1973 abortion-rights ruling, Roe v. Wade, to be “settled law.” And he reinforced that time and time again by saying it was a precedent that had been followed by another case that was also a precedent, thus giving the impression that the Roe decision could not be overturned.
But in a 2003 email that was made public during the hearing, Kavanaugh wrote, “I am not sure that all legal scholars refer to Roe as the settled law of the land at the Supreme Court level since Court [sic] can always overrule its precedent, and three current Justices on the Court would do so.”
He repeatedly declined to give a direct answer as to how he felt about the decision, or how he might vote if someone asked the Court to overturn it. However, President Trump repeatedly promised to nominate to the Supreme Court someone who would vote to overturn Roe.
On June 11, 2018 President Trump nominated Jonathan Allen Kobes to the U.S. Court of Appeals for the Eighth Circuit. Kobes was nominated to fill the seat of Judge Roger Wollman, who announced he will take senior status.
Kobes’s relative lack of legal experience for a nominee to a U.S. Court of Appeals is noteworthy. According to his Senate Judiciary Questionnaire, he has served as lead counsel in just two trials that led to a verdict. It appears in his questionnaire that he has had just one appellate oral argument. He has argued no cases before the Supreme Court. And, he has no legal scholarship, authored no law review articles, nor made any public pronouncements on legal issues (his only substantive public statements, in a Dutch newspaper, relate to politics and Donald Trump). His career of late has been primarily as a political aide to Senator Mike Rounds.
In the absence of extensive trial, appellate or academic accomplishments, the most notable aspects of his record are his closeness to South Dakota’s junior senator and his personal political views. For example, he has fought reproductive rights, defended President Trump’s attacks on federal judges, and been a member of the Federalist Society and National Rifle Association. Little in his record suggests he will be a fair-minded judge who will properly apply critical rights and legal protections.
On May 15, 2018, President Trump nominated Ryan Nelson to the Ninth Circuit Court of Appeals. If confirmed, Nelson will replace Judge N. Randy Smith, who is scheduled to assume senior status on August 11, 2018.
Based on our review of Nelson’s record, Alliance for Justice opposes his nomination to the Ninth Circuit Court of Appeals.
Ryan Nelson attended law school at the J. Reuben Clark Law School of Brigham Young University. While in attendance, Nelson worked as a research assistant for then-professor Thomas Lee, who currently serves on the Utah Supreme Court and is on President Trump’s Supreme Court short list. He also joined the ultraconservative Federalist Society – an outside group to which Trump has delegated important aspects of the judicial nomination process – and has been a member since that time.