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Muslims in the US Fear Worse Repression If Kavanaugh Joins the Court

Trump could gain even more latitude for anti-Muslim policies if Kavanaugh joins the Supreme Court.

If confirmed to the Supreme Court, Brett Kavanaugh is unlikely to act as a check on the Trump administration’s extreme anti-Muslim policies.

Amid the ongoing protests against Brett Kavanaugh’s nomination to the Supreme Court, there is yet another reason for upset and outrage about this nominee: the threat Kavanaugh poses to the Muslim American community. If his record is any indication, Kavanaugh would support legal rulings that further marginalize Muslim Americans and other oppressed communities in the US and abroad.

Attorney Madihha Ahussain, who provides special counsel for anti-Muslim bigotry at Muslim Advocates, a national legal advocacy and educational organization, is troubled by Kavanaugh’s nomination. “A lot of the mobilizing we have seen from allies and partners has been in the space of health care and women’s rights issues, given Kavanaugh’s record on some of these issues specifically,” Ahussain said. “However, when it comes to issues related to the American Muslim community, much of the concern stems from his views on presidential power and national security/detention issues.”

For starters, Judge Kavanaugh played an important role in crafting President George W. Bush’s ludicrous detention and interrogation policies.

In Omar v. McHugh, Kavanaugh supported rejecting the habeas petition of a Muslim US citizen who was in US military custody and facing transfer to potential torture in Iraqi custody. Similarly, in Saleh v. Titan Corp, Judge Kavanaugh decided to support barring of state law tort claims against a private military contractor despite the fact that there are no federal statutes required for such an outcome. A review of Kavanaugh’s rulings on national security showed an unwillingness to protect detainees from a “risk of torture and other abuse in a receiving country.” He has also shielded military contractors from lawsuits and defended the bulk collection of citizens’ phone records by the NSA.

Additionally, for the Muslim American community, Kavanaugh’s dissent is concerning since polls show Muslims already feel threatened by the president.

Kavanaugh’s lenient views on presidential power were also apparent in a dissent after the US Court of Appeals for the District of Columbia Circuit upheld the Affordable Care Act in 2011. In his dissent, he argued the president could ignore courts and the law: “Under the Constitution, the president may decline to enforce a statute that regulates private individuals when the president deems the statute unconstitutional, even if a court has held or would hold the statute constitutional.” Jeffrey Toobin, a staff writer at The New Yorker and senior legal analyst for CNN, wrote that Kavanaugh’s dissent was “bizarre” and that he “wasn’t interpreting the Constitution; he was pandering to the base.”

Further, Kavanaugh has argued a sitting president should not be able to be criminally indicted. He said the president “should have absolute discretion [about] whether and when to appoint an independent counsel” and also decide who does the investigating. He has also stated “the President and the Attorney General, rather than any court, [should] define and monitor the independent counsel’s jurisdiction,” and that any special prosecutor should be removable at will by the president.

“If the President were the sole subject of a criminal investigation, I would say no one should be investigating that” at all, he told the Senate Judiciary Committee earlier in September.

Zahra Billoo, the executive director of the Council on American Islamic Relations in San Francisco is worried about Kavanaugh’s “support from the right wing and alignment with the Trump administration.”

“Issues like the Muslim Ban, extreme vetting, and even hate crimes are at the forefront of the fight for civil rights in our country, which means that if Kavanaugh is appointed to the Court he too will have a stake in [the Muslim American community’s] fate,” says Billoo.

With Muslim Americans already unduly implicated in our government’s national security policies, it should be extremely concerning if not shocking to American Muslims that Kavanaugh is unlikely to act as a check on the current administration’s extreme anti-Muslim policies.

“On issues of religious freedom, reproductive rights, voting rights, economic justice and a host of other issues, Kavanaugh has shown fierce hostility to the priorities and values of an overwhelming majority of our [Muslim American] community,” Sufyan Sohel, deputy director of the Chicago office of the Council on American Islamic Relations, told Truthout.

This is beyond a Muslim issue, Sohel says, but one that affects all people who believe in justice and fairness. Kavanaugh would most likely stand firm behind many decisions coming from the White House and vote to uphold them if brought before the Supreme Court. Kavanaugh also has a documented history of favoring the powerful over the marginalized and ruling against women’s rights. “As a community, we must reach out to our elected officials in full force to ask them to not support this nomination,” Sohel says.

Kavanaugh has also displayed a disregard for upholding freedom of religion except where it serves to privilege Christianity. He has long opposed the separation of church and state: while in private practice, Kavanaugh submitted an amicus brief to the Supreme Court in Good News Club v. Milford Central School, where he argued against longstanding precedent prohibiting the use of public funds for religious activities. In fact, Judge Kavanaugh has specifically expressed hostility toward the very idea of a distinction between church and state. During a 2017 lecture at the American Enterprise Institute, Judge Kavanaugh praised former Chief Justice William Rehnquist for “persuasively criticiz[ing]” the metaphor of “a strict wall of separation between church and state.” Abandoning the separation of church and state would come at the expense of religious minorities and other vulnerable groups.

Meanwhile, political activist and former executive director of the Arab American Association of New York Linda Sarsour encourages resistance from the Muslim American community and its allies. “We need to ensure that no Democrats vote for this nomination and urge the vote is delayed until after the midterm elections,” Sarsour told Truthout. “This means using every nonviolent tactic in our toolbox: calls, emails, social media, op-eds, sit-ins at their offices, rallies, creative actions. We cannot allow this nomination to go through because it will take us back decades on women’s reproductive rights, voting rights, immigration and so much more.”

The confirmation of Brett Kavanaugh to the Supreme Court would have grave consequences for our democracy. Muslim and non-Muslim alike, we all have a responsibility to oppose him.