Aziz Huq is a law professor at the University of Chicago, and has recently wrote an article titled: Why You Shouldn’t Care Whether Kavanaugh is an ‘Orginialist.’ You can read it if you’d like, but when it comes to “Originalist” judges, his discussion about them is vague. “Originalist” judge means they, or Kavanugh “will be guided by the Constitution’s ‘original meaning.’” Aside from telling the reader that “liberals and conservatives alike can do better,” than to judge a judge by the title. His argument is basically that all judges use the original meaning of something in the Constitution, precedence, and whatever other tools the judges deems necessary.
I know shit compared to Aziz Huq, which is why his vague discussion of Originalists, was frustrating. So I’m going to write about Kavanaugh, besides him being an Originalist, and what you can expect from Originalist judges.
As Chris Hedges writes of Originalist judges in his book Wages of Rebellion:
The right-wing Federalist Society, after its founding in 1982, unleashed a frontal assault on the legal system that has transformed it into a wholly owned subsidiary of the corporate state. After Stanford University asked Stewart (an attorney who defends the poor, the persecuted, and the marginalized) to speak there in 2002, she arrived on campus to find that the Federalist society had pressured the university into descending the invitation. Sympathetic students found her a place to talk, but Federalist Society members appeared at the even to jeer and ask caustic questions. Pg. 48
Today we like to give students shit on college campuses for being politically correct, some of it deserved, some of it taken out of context, but at least they’re not people who are looking to become future judges. The idea that future wanna-be judges would be trying to disrupt a public speaker, is all you should need to know what the Federalist society is all about, but let’s discuss them more.
Without Federalist society judges, we would not have the Hobby Lobby decision, or Citizens United. In the Hobby Lobby case, they essentially decided that a corporation has religious beliefs, but in the Preamble in the Constitution starts with “We the People,” not “We the Corporation.”
Yes money was finding its way into United States politics, but Citizens United case was the nail in the coffin to honest national elections. Of course, Antonin Scalia essentially said that this wouldn’t add to our corruption problem in politics, Justice Kennedy was the one who wrote Citizens United, and he was that wanted Brett Kavanaugh to replace him on the Supreme Court.
Before we get to Brett Kavanaugh, lets take a moment to look at the Originalist that came before him, Judge Neil Gorsuch. If you were a worker, Neil Gorsuch is the devil put into a place of power to literally kill you on the job. Just as a case that came before him almost ten years ago with truck driver Alphonse Maddin.
On a January night in 2009, Alphonse was driving in Illinois, where the temperature dropped to 14 degrees below zero. After pulling over to find a place to get fuel, when he went to drive off, the trailer’s brakes were frozen.
The story goes as described by David Cay Johnston in It’s Even Worse Than You Think:
A dispatcher told Maddin to sit tight until a repair truck arrived. Maddin fell asleep in the unheated truck for two hours, awakened by a cousin’s cell phone call. Maddie’s torso was numb, his speech slurred, cousin Gregory Nelson testified, describing classic signs of hypothermia. Maddin radioed his dispatcher, who told him “Hang in there” until help arrived.
A half hour later, certain he was on the verge of freezing to death, Maddin disconnected the trailer and drove to warmth. Pg. 64
Maddin’s employer TransAm Trucking fired him for not following orders, and subsequently passed a law stating that employers couldn’t fire workers who “refused to operate a vehicle because.. the employee has a reasonable apprehension of serious injury to the employee or the public because of the vehicle’s hazardous safety or security condition.”
Maddin filed a complaint with the Labor Department, and an administrative law judges and a review board ordered TransAm to reinstate Maddin. TransAm took the case to the Tenth Circuit Court, where one of the three judges was Neil Gorsuch. Two of the judges upheld the Labor Department’s decision, but Gorsuch sided with TransAm, with an interesting reasoning behind it. In his dissent, the law “only forbids employers from firing employees who ‘refuse to operate a vehicle’ out of concerns,” adding:
Nothing like that happened here. The trucker in this case wasn’t fired for refusing to operate his vehicle. Indeed, his employer gave him the very option the statue says it must: once he voiced safety concerns, TransAm expressly… permitted him to sit and remain where he was and wait for help. The trucker was fired only after he declined the statutorily protected option (refuse to operate) and chose instead to operate his vehicle in a manner he thought wise but his employer did not. And there’s simply no law anyone has pointed us to giving employees the right to operate their vehicles in ways their employers forbid.. The law before us protects only employees who refuse to operate vehicles, period. ‘It’s Even Worse Than You Think’- Pg. 64-65
David Cay Johnston writes of the choices that Gorsuch gave Maddin:
Gorsuch said Maddin had two choices if he wanted to keep his job, He could drag the truck with the frozen brakes locking its wheels, which Gorsuch said would be illegal. Or, Gorsuch wrote, “he could sit and wait for help to arrive (a legal if unpleasant option).
Senator Dick Durbin told Gorsuch at his confirmation hearing, that 14 below was “cold, but not as cold as your dissent, Judge Gorsuch.” Gorsuch, Kavanaugh, and the rest of the Federalist society, represent the corporate state’s control over our lives, they are the guardians in robes for the corporate state’s take over of our lives, and our democracy.
Kavanaugh represents the states control over the lives of women, and Kavanaugh or his supporters are not fooling women. Only 28% of Republican women agree that Kavanaugh should be confirmed, while only 6% of Democratic women say so. Honestly, I find it shocking that even 6% of Democratic women approve. If he is confirmed, he will vote to get rid of Roe vs. Wade. You can be against abortion, you can be the “I don’t like it personally, but support it politically,” but you cannot argue that the five men who will vote to make abortion illegal, who subsequently vote to make it illegal for a man to abandon a women they accidentally impregnated.
As a man I’m fully aware of the hypocrisy of making abortion illegal. That men like Kavanaugh have the audacity to tell women what they can and cannot do, but would never make a law that gave the state power over a man’s body. That of polled Americans, and only 37% favoring Kavanaugh, shows the disintegration of our American democracy, that Kavanaugh will do his fair share to destroy even further.
Not only is Kavanaugh a danger for our women, he also represents a threat to minorities right to vote, as noted by Mother Jones:
As a judge on the DC Circuit Court of Appeals, Kavanaugh voted in 2012 to uphold a South Carolina voter ID law that the Obama administration said would disenfranchise tens of thousands of minority citizens. The Justice Department blocked the law, which required government-issued photo identification to vote, in late 2011 for violating the Voting Rights Act.
The Federalist societies work has been to take power from the people, time and again, and Aziz Huq decided to spend no time to teach readers of any of their rulings, nor to take the time to actually look at Kavanaugh’s record, including lying under oath during a Senate confirmation hearing in 2006 to become a federal judge. Senator Dick Durbin realized that Kavanaugh had lied, and sought for answers, but was “stonewalled” by Kavanaugh.
After Trump nominated Kavanaugh for the Supreme Court, Durbin tweeted:
In 2007 I sent Brett Kavanaugh this letter asking to explain his inaccurate and misleading testimony to the Senate Judiciary Committee. I’m still waiting for an answer.
In his tweet, Senator Durbin included a copy of the 2007 letter that he sent to Kavanaugh.
I’d never make the argument that Aziz Huq doesn’t know anything about the law, or law makers. But if your going to write about Brett Kavanaugh, he’s left enough along the trail to the Supreme Court that proves he should not be nominated. For being an Originalist, he comes to bring a wrecking ball to democracy, and his lying under oath is just an extra point that says he’s not deserving.
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