Monday, November 19, 2018
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Trump’s Supreme Court Nominee Brett Kavanaugh Disregards International Law

Interview with Marjorie Cohn, professor emerita, Thomas Jefferson School of Law, conducted by Scott Harris

The Senate confirmation hearings of conservative Federal Appeals Court Judge Brett Kavanaugh, President Donald Trump’s nominee to replace retiring Justice Anthony Kennedy on the Supreme Court, began with an eruption of protest both from Democratic senators and citizens in the hearing room urging the nomination be blocked. Democrats are irate that Republicans dumped 42,000 documents about Kavanaugh on committee members the night before the first day of hearings, giving them little time to review the records. They’re also angry that the Trump administration has withheld some 100,000 documents from the years when Kavanaugh served as President George W. Bush’s staff secretary.
Kavanaugh’s views and rulings have alarmed many who fear that if he’s confirmed he’ll cement an extreme right-wing majority on the high court for years to come, eroding civil, worker, voting, consumer, reproductive and gay rights, as well as undermining environmental regulations and access to health care. Many believe Trump nominated Kavanaugh because the judge believes that a president should be exempt from criminal investigation and prosecution – the very thing that Trump now confronts with the Mueller probe.
While Kavanaugh’s judicial record and personal views on the issues of abortion and presidential power will be central to questions raised during the Senate hearings, some observers say that Kavanaugh’s record of rulings on cases involving international law should also be closely scrutinized.  Between The Lines’ Scott Harris spoke with law professor Marjorie Cohn, former president of the National Lawyers Guild, who examines Brett Kavanaugh’s rulings that reveal his disregard for international law.

MARJORIE COHN: Well, if Brett Kavanaugh is confirmed, which I am afraid he will be, that will mean that (Justice John) Roberts becomes the swing vote instead of Kennedy and the entire court will move to the right. I think that we are at risk of losing abortion rights, voting rights, affirmative action, environmental rights, gay rights. He would not put limitations on money in politics. He would be to the right of Kennedy in criminal cases. He will defer to presidential power all the way around. I think we’re going to have a very, very solid right-wing majority on the Supreme Court for decades to come if Kavanaugh is confirmed.

BETWEEN THE LINES: Now, Marjorie in your recent article, Kavanaugh scorns international law and loves executive power. You point out as a judge, Kavanaugh has actually bolstered executive power when it comes to the status of prisoners at Guantanamo, concerns you have about war-making powers and the like. Can you explain some of your base concerns here about Kavanaugh and his record, his judicial record, when it comes to some of these issues of international law and how the United States abides by treaties that our nation has signed?

MARJORIE COHN: The Constitution gives Congress the power to make the law and gives the president the duty to carry them out. And yet, Kavanaugh wrote in 2014 that the president must follow the law “at least until the president deems the law unconstitutional, in which event the president can decline to follow the statute until a final court order says otherwise.”

That means that Kavanaugh would be signaling to Donald Trump, “You are free to disobey laws that Congress passes, even if you sign them. Instead of vetoing them, you can sign them, you can attach what’s called a signing statement saying, ‘If I think certain laws are unconstitutional, I’m not going to follow it.'” And that creates a dangerous presumption in favor of a president who refuses to follow the law.

Now, Kavanaugh reportedly played a very key role in signing statements during the Bush administration in preparing these signing statements where Bush reserved the right to ignore parts of congressional statutes that he didn’t agree with. And when Kavanaugh was on the Court of Appeals for the D.C. circuit in nearly all these so-called war on terror cases that came before him, he deferred to Bush. He voted to uphold Bush’s decision and I have no doubt he would do the same with Trump.

BETWEEN THE LINES: Marjorie, I did want to ask you about Brett Kavanaugh and what we know about his role in the White House when he worked there from 2003 to 2006 under George W. Bush as it relates to directives from the White House during that time to encourage torture of prisoners that were captured in the Bush invasion of Afghanistan and the capture of other prisoners linked to 9/11. I should note here that the Trump administration has refused to release some 100,000 documents for the time covering the period when Brett Kavanaugh worked at the White House as a staff secretary.

MARJORIE COHN: That’s right. Well, after it was revealed that detainees were being tortured and not just at Guantanamo, but also in the CIA black sites – we don’t know how many, probably thousands of them. And when the photographs from Abu Ghraib, those horrific photographs were released, John McCain, who was tortured in Vietnam had pushed for an amendment to the 2005 Detainee Treatment Act, basically reaffirming the prohibition against cruel, inhuman and degrading treatment, Bush signed that law. He didn’t veto the Detainee Treatment Act, but he signed it and issued a signing statement saying,  “Well, I’m not gonna follow that McCain amendment if I don’t want to, if I think it’s unconstitutional.”

Sen. Patrick Leahy was questioning Kavanaugh at his confirmation hearing in 2006 before the Senate Judiciary Committee, a confirmation hearing for a spot on the U.S. Court of Appeals. Leahy asked Kavanaugh about that signing statement to the so-called McCain amendment and Kavanaugh said, “I did see that signing statement, senator,” and when Leahy pushed Kavanaugh about how he felt about that signing statement, Kavanaugh gave a nonresponsive answer saying, “Oh, the United States doesn’t torture.” Totally nonresponsive, begging the question.

This is unprecedented that the members of the Senate Judiciary Committee and ultimately, the Senate who will make the final decision, does not have access to all the records for a nominee to the Supreme Court. And, it’s clearly a cover-up. There’s no doubt about it. They want to rush him through, put him on the court before the November midterm elections.

For more information, visit Marjorie Cohn’s website at marjoriecohn.com.

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