recent decision shows Brett Kavanaugh should not join Supreme Court

President Tump’s pick of Brett Kavanaugh to replace retiring Supreme Court Justice Anthony Kennedy has ruffled some feathers. For example, my Senator Patty Murray is on record opposing his nomination on two grounds: first, that by association with Trump he would overturn Roe v Wade if occasion permitted; and second, due to rebukes he made against the Roberts Court which decided it, he opposes constitutional sanction of ObamaCare. Another complaint in wide circulation is how it is well understood (though somewhat debated) that he would support Congressional action to shield sitting Presidents from civil lawsuits.

While those concerns are valid as far as they go, I’m worried that focusing on them is unlikely to prevail in derailing his appointment since, quite frankly, it isn’t clear that they concern a plurality of Senators. I believe that Kavanaugh’s long record of jurisprudence is independently disqualifying outside those narrow political parameters and more attention should be paid to his overall legal philosophy. Luckily efforts are being made to obtain the fullness of his public record, though powerful Senators are also trying — in some cases hypocritically — to block an open review.

Thanks to reporting from the Intercept, I was made aware of a fairly shocking decision that Kavanaugh handed down — on the very day Trump announced him as his pick — from the three-judge Appeals Court on which he sat. I think that decision is a telling vignette into Kavanaugh’s current judicial philosophy and temperament. It casts serious doubt on his candidacy for the highest court to say nothing of the risk it reveals to government transparency law. I think emphasizing this style of failing will be more salient in openly evaluating Kavanaugh. My analysis follows.

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The Intercept v. McDonnell v. United States

One of the great journalistic developments of the last few years is the rise of The Intercept, the self-styled adversarial journal cofounded by Glenn Greenwald, Laura Poitras, and Jeremy Scahill. Founded in the immediate aftermath of Edward Snowden’s NSA leak as an avenue for publication and analysis of those documents, the site has become a relatively fearless and eloquent site for objective reporting and progressive editorials.

But like any media group with an ideological agenda, the temptation for an unsubstantiated stretch to support a general claim is high. A short op-ed at the close of the Supreme Court’s term in late June by staff contributor Jon Schwarz raised my eyebrows for its sharp and sarcastic rhetoric accusing the Court of being self-contradictory and even activist in legitimizing the corrupting role of money in politics. The prevalence of pay-to-play corruption as a talking point in coverage of this election cycle motivates a closer look at both the editorial and the case.

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