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LGBT groups react harshly to Kavanaugh

by Lisa Keen

President Donald Trump congratulates Judge Brett Kavanaugh after his nomination to the Supreme Court Monday, as his wife, Ashley, and daughters, Margaret and Liza, look on. Photo: Courtesy CNN
President Donald Trump congratulates Judge Brett Kavanaugh after his nomination to the Supreme Court Monday, as his wife, Ashley, and daughters, Margaret and Liza, look on. Photo: Courtesy CNN  

Reaction from LGBT organizations to President Donald Trump's nomination of Judge Brett Kavanaugh to the U.S. Supreme Court was unsparing Monday night, with many saying he will not be like Anthony Kennedy, the justice he is replacing and for whom he once served as a law clerk.

Trump nominated Kavanaugh during primetime televised remarks from the White House July 9.

Kavanaugh, 53, serves as a judge on the U.S. Court of Appeals for the District of Columbia.

He has no known LGBT-related decisions in his 12 years on the federal appeals court. But LGBT activists feel certain that he will be no Kennedy.

"There hasn't been a nominee for the Supreme Court this extreme since Robert Bork." Rea Carey, executive director of the National LGBTQ Task Force, said, referring to the onetime Reagan nominee whose confirmation was rejected by the Senate in 1987.

Jenny Pizer of Lambda Legal Defense and Education Fund was more blunt, saying Kavanaugh will "yank the court sharply to the extreme right."

Equality California called him a "far-right extremist."

"Judge Brett Kavanaugh is a far-right extremist who may satisfy the litmus test established by the president's supporters, but has consistently ruled against some of our most fundamental American freedoms," Rick Zbur, EQCA executive director, said in a statement. "To replace Justice Kennedy with a dangerously radical opponent of LGBTQ equality, reproductive rights, affordable health care, and fair elections would be an affront to the lives of people across the political spectrum who value these fundamental freedoms."

Shannon Minter, legal director of the National Center for Lesbian Rights, said there is nothing in Kavanaugh's record to indicate he "understands the real-world impact of discrimination on LGBT people or the importance of construing our nation's laws to enable them to participate fully and equally in society."

But Kavanaugh, speaking from prepared remarks in the East Room of the White House Monday night, tried to suggest he understands.

He said he was deeply honored to fill Kennedy's seat. He didn't mention that Kennedy had, during his time on the bench, become a reliable swing vote in favor of equal rights for LGBT people in four landmark cases.

Kavanaugh noted that Justice Elena Kagan, when she was dean at Harvard Law School, hired him to teach students there that "the Constitution's separation of powers protects individual liberty ..." He did not mention that Kagan has been a reliable vote for LGBT equality, too.

And Kavanaugh credited his mother, a judge who had once taught in public high school. He said she "taught me the importance of equality for all Americans."

Kavanaugh did not mention that he also clerked for 9th U.S. Circuit Court of Appeals Judge Alex Kozinski. Kozinski, who resigned last year as allegations surfaced that he engaged in sexual misconduct, was also a supporter of equal rights for LGBT people.

Log Cabin Republicans, a gay GOP group, sent out no press statement, and did not have anything about Kavanaugh's nomination on its website as of Wednesday.

Background
President George W. Bush appointed Kavanaugh to the D.C. Circuit. Prior to that, Kavanaugh worked in the White House as Bush's staff secretary and he married Ashley Estes, the woman who worked as Bush's personal secretary. In the Bush White House, Kavanaugh was a key player in choosing U.S. Supreme Court nominees, most of whom were very right wing.

At Kavanaugh's own confirmation hearing in 2006, then-Senator Sam Brownback (R-Kansas) told Kavanaugh that the issue of same-sex marriage was coming up through the court system. He asked, "Do you have a viewpoint on issues, say, as marriage and the determination of the definition of that? Is that something that the court should establish or is it left to the legislative bodies?"

Kavanaugh said he was hesitant to discuss the issue, since it might come before him on the D.C. Circuit.

"In terms of your general principle about judicial activism," said Kavanaugh, "I do think that some of the worst moments in the Supreme Court's history have been moments of judicial activism, like the Dred Scott case, like the Lochner case, where the court went outside its proper bounds, in my judgment, in interpreting clauses of the Constitution to impose its own policy views and to supplant the proper role of the legislative branch. So I think, in terms of judicial activism, that is something that all judges have to guard against. That is something that the Supreme Court has to guard against. And throughout our history, we have seen that some of the worst moments in the Supreme Court history have been moments of judicial activism where courts have imposed their own policy preferences."

Rachel B. Tiven, chief executive officer of Lambda Legal, said LGBT people "have good reason to fear that Judge Kavanaugh will abuse his power on the court to protect the wealthy and the powerful while depriving LGBT Americans of our dignity, demeaning our community, and diminishing our status as equal citizens."

Many political observers speculated that Trump was drawn to Kavanaugh, in no small part, because he thinks Kavanaugh would protect him when certain issues come before the Supreme Court. Kavanaugh has written, for instance, that he does not believe a U.S. president can be criminally indicted or subjected to a civil lawsuit while in office.

Senator Cory Booker (D-New Jersey), who is on the Senate Judiciary Committee, told the "Rachel Maddow Show" Monday night that the Kavanaugh nomination is a "get out of jail free card" for the president.

Other Democratic senators have also announced their opposition to the nomination.

Senator Kamala Harris (D-California) was among the first to respond after Trump's announcement, stating that the Supreme Court "has a profound impact on the rights - and lives - of all Americans. When at its best, it has advanced the meaning of those words above its doors, 'Equal Justice Under Law.'"

"Judge Brett Kavanaugh represents a direct and fundamental threat to that promise of equality and so I will oppose his nomination to the Supreme Court," Harris stated. "Specifically, as a replacement for Justice Anthony Kennedy, his nomination presents an existential threat to the health care of hundreds of millions of Americans."

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