What Brett Kavanaugh’s Court Would Mean for Women: Unpacking the Far-Right Record of Trump’s SCOTUS Nominee

“If you are a young woman in America, or you care about a young woman in America,” Senator Kamala Harris (D-CA) told a crowd on the steps of the Supreme Court Tuesday morning, “pay attention to this, because it will forever change your life.” Harris was referencing the nomination by President Trump of Brett Kavanaugh—a 53-year old far-right judge with a hostile record towards abortion and reproductive rights—to serve as a Supreme Court Justice.

On Monday night after the President’s announcement of his nomination, more than a thousand activists gathered at the Supreme Court and outside of Trump Tower in New York City in protest. Others began to prepare for an upcoming battle over his appointment in the Senate, one which will determine the make-up of the Court for generations.

Kavanaugh’s nomination threatens the balance of the Court and endangers decades of progress for women’s rights, LGBTQ rights and civil rights in the United States. Kavanaugh was chosen from a list of possible nominees compiled for Trump by the Federalist Society, a group of so-called originalists who believe that the Constitution should be interpreted as the founding fathers intended at the time it was written, leaving little room for the protection of the rights of women, people of color and queer and trans communities. If confirmed, Kavanaugh would become the court’s 108th of 113 white male justices.

Kavanaugh’s deeply partisan associations precede him: In 2004, Senator Chuck Schumer (D-NY) said his nomination to the D.C. Circuit was “not just a drop of salt in the partisan wounds, it is the whole shaker.” He currently serves on the U.S. Court of Appeals in the District, a post to which he was appointed by President George W. Bush in 2006. Previously, he had clerked for both retiring Justice Anthony Kennedy and the embattled former federal judge Alex Kozinski, who recently retired after 15 women accused him of sexual harassment, and was a member of Bush’s legal team during the controversial 2000 presidential recount in Florida and the lead author of the infamous Starr report during the Clinton presidency.

As a circuit court judge, Kavanaugh has also become a darling of anti-abortion groups, especially after he attempted to block 17-year-old migrant Jane Doe’s abortion last year. Doe, who had come to the U.S. seeking refuge from an abusive home life, knew she wanted an abortion—but Trump administration officials instead forced her to visit a crisis pregnancy center and wait in a government-funded shelter in Texas. Doe was “essentially held… hostage” by judges, as Ms. wrote in the Winter 2018 issue—and Kavanaugh led the charge. According to the Alliance for Justice, ”Kavanaugh claimed the court was creating ‘a new right’ for immigrants in custody ‘to obtain immediate abortion on demand.’” In the case, he ruled that the U.S. government had an interest in “protecting fetal life.” Kavanaugh also argued in a 2015 dissent that contraception coverage under Obamacare would infringe on religious rights.

“Brett Kavanaugh has a history of sexism and undermining women’s rights. From scrutinizing the precedent of abortion rights to showing sympathy to organizations denying women basic health care on the basis of ‘religious liberty,’ it is clear that he will uphold the Trump administration’s war on reproductive freedom,” In Our Own Voice: National Black Women’s Reproductive Justice Agenda Executive Director Marcela Howell said in a statement. “We urge the Senate to reject Kavanaugh and stand with the Black women and women of color fighting to ensure that every woman has the resources and right to make decisions about her own body.”

If appointed to the Supreme Court, Kavanaugh would fulfill Trump’s continued promise to appoint anti-abortion judges—and would become the fifth vote to overturn Roe v. Wade, opening the doors to state criminalization and penalization of abortion providers, clinic staff and patients. “There’s no way to sugarcoat it: with this nomination, the constitutional right to access safe and legal abortion in this country is on the line,” Dawn Laguens, executive vice president of Planned Parenthood Federation of America, said in a statement. “We already know how Brett Kavanaugh would rule on Roe v. Wade, because the president told us so.”

Kavanaugh’s history also involves widespread support from anti-LGBTQ groups, such as the Family Research Council, designated as a hate group by the Southern Poverty Law Center, as well as groups like the National Rifle Association. In the past, he has ruled against basic protections for workers, environmental protections and even the regulation of machine guns. He also has a history of opposition to the Affordable Care Act’s mandates which prohibit insurance companies from discriminatory “gender rating” and require insurance plans to cover preventative services for women, including well-woman visits, mammograms, domestic violence screening, contraceptive coverage and maternity care.

The continuation of Robert Mueller’s special counsel investigating Russian influence in 2016 election also presents additional concerns over Trump’s decision to pick Kavanaugh—who once wrote that “Congress should give back to the President the full power to act when he believes that a particular independent counsel is ‘out to get him.’” Some Democratic senators are encouraging the Senate to reject the nominee unless he recuses himself from all cases associated with Mueller’s probe, according to The Hill.

“These are not ordinary times,” Feminist Majority President Eleanor Smeal said in a statement. “Senators who believe in human rights must stand strong and prevent a president who is a subject of an unprecedented investigation from stacking the Court.”

The Feminist Majority is encouraging members to demand their Senators do all they can to delay a vote on any nominee until after the elections—leveraging Senate Majority Leader Mitch McConnell’s year-long refusal to bring then-president Barack Obama’s Supreme Court nominee, Merrick Garland, to the floor before the upcoming 2016 elections.

“We are standing at the precipice of a turning point for human rights in America,” Smeal noted. “This is the fight of our lives. We have every right to demand that the Senate wait to vote on this nomination until after the new Congress is sworn in.”

In order to block Kavanaugh’s nomination, a majority of Senators voting must vote “no” on bringing his nomination to the floor—a challenging, but not impossible, task. The Indivisible Campaign’s #SaveSCOTUS effort is mobilizing activists nationwide to challenge the nomination and hold their elected officials accountable.

With Sen. McCain too ill to return to Washington from his home in Arizona, the Republicans have only a one vote majority, at 50-49. Should even one Republican Senator join the 49 Democrats in voting against the nomination, Kavanaugh’s nomination could be defeated. Senators Lisa Murkowski of Alaska and Susan Collins of Maine, two pro-choice Republicans who have currently only promised careful vetting of the judge, are facing mounting political pressure to reject any Justice nominee who threatens abortion access.

“Last night we were at the Supreme Court rallying with Democratic Senators to oppose the nomination, today we were in district offices urging Senators to stand with women and tomorrow we will continue fighting in the streets and in the halls of Congress to stop Kavanaugh from being confirmed to the Court,” Smeal told FM members in a later email. “We can’t go back. We must save Roe.


Brock Colyar is a former editorial intern at Ms. They were a journalism and gender and sexuality studies major at Northwestern University, where they founded a campus queer and radical feminist magazine and served as a sexual health and assault peer educator. Much of their spare time is spent overthinking intra-feminist politics and Stevie Nicks. You can follow them on Twitter @UnhappyFem (Photo via Colin Boyle/The Daily Northwestern.)