Lives Are at Stake: The Struggle to Stop Trump’s Right-Wing Takeover of the Supreme Court

Activists and organizers around the country are mobilizing against President Trump’s Supreme Court nominee Brett Kavanaugh, who needs a simple majority of 51 votes in the Senate to be confirmed. If Kavanaugh fills Justice Anthony Kennedy’s seat, it will likely create the most conservative court the United States has seen since the 1930s. We speak with Cecile Richards, former president of the Planned Parenthood Federation of America and the Planned Parenthood Action Fund; David Cole, national legal director of the American Civil Liberties Union; Fatima Goss Graves, president and CEO of the National Women’s Law Center; and Rachel Tiven, CEO of Lambda Legal.

TRANSCRIPT

AMY GOODMAN: This is Democracy Now!, democracynow.org, The War and Peace Report. I’m Amy Goodman, with Juan González, as we talk about President Trump’s nomination for Brett Kavanaugh to the Supreme Court to replace the retiring Anthony Kennedy. In fact, Brett Kavanaugh and Neil Gorsuch were both clerks to Anthony Kennedy. Our guests are David Cole, who’s legal director of the American Civil Liberties Union, which has become the rapid-response organization in this country to all things Trump; Cecile Richards, former head of Planned Parenthood Federation of America. President Trump has promised to overturn Roe v. Wade. Rachel Tiven is head of Lambda Legal. And Fatima Goss Graves is head of the National Women’s Law Center in Washington, where she spoke — a thousand people gathered — last night after President Trump made his nomination. Cecile Richards?

CECILE RICHARDS: Well, I think that one of the issues here that women have, of course, is equal representation on the courts, in Congress. And there is no way to avoid the fact that of the 113 Supreme Court justices in our lifetime, only six have not been white men. So, yet again, we are now populating a court — and, of course, this president, I think more than 75 percent of his judicial nominees have been men. And as was discussed last night, when Roe v. Wade is at stake, it could be a court where the — that it absolutely overturns the right to safe and legal abortion, and that is done by men. I think that the point that David made earlier is right. All of this is political. This is the most political nomination process I’ve ever seen. And women are enraged. I think we’re seeing women, you know, historic numbers of women, running for office, women turning out to vote, women volunteering, women marching. This nomination is going to, I think, simply inflame women more, and it’s going to have a huge impact in the November elections.

JUAN GONZÁLEZ: And, David Cole, I wanted to ask you, in terms of the legacy of Justice Kennedy and the vast difference between this nominee and what Kennedy represented, if you could talk about his role in terms of being not only conservative, but at the same time also seeing the Constitution, as you mentioned, as an evolving document?

DAVID COLE: Right. So, Justice Kennedy was also a conservative, appointed by a Republican president, and voted often with the conservatives, particularly on business cases. But he had an open mind, and he believed in an evolving Constitution. And as a result, he was willing to listen and willing to depart from the sort of script and decide with the liberals in some cases, with the conservatives on others. And as a result, he kept the court within the mainstream of American society, notwithstanding that it’s had a majority of conservative justices for the last 40 years. He wrote all of the court’s gay rights decisions, a number of them 5-4, including the marriage equality. He was the fifth vote to preserve Roe v. Wade and Planned Parenthood v. Casey. He was the fifth vote to strike down the death penalty for juveniles. He was the fifth vote to hold that disparate impact is a violation of the Fair Housing Act — a critical interpretation of a civil rights statute. He was the fifth vote to save affirmative action. So, you know, if it weren’t for Justice Kennedy, we would be living in a very, very different constitutional world.

And, you know, the question will be: If Kavanaugh is confirmed and we have five more conservative justices on the court, will we be living in a very different world? And I think the answer — we don’t know the answer. But I think we know this: The answer depends more on us than it does on Justice Kavanaugh. If we go to the polls at the midterms, if we go to the polls in 2020, if we turn this moment around into a galvanizing moment for those who believe in civil rights and civil liberties, and the politics of the country reflects that — and I think we can — the court has never, with one exception in our history, departed very substantially from where the mainstream of American public opinion is. And that one exception was in the Progressive Era and the early New Deal, where people and Congress and the president wanted worker protection laws, and the Supreme Court was striking them down left and right. What happened? The court became illegitimate, and it had to shift. So I think the answer has to be politics. And so, politics includes fighting about this nomination. But I would say the real politics includes getting out there in the midterms, getting out there at 2020 and voting like your rights depend on it. And if that’s the case, I think we will continue to have a court that is within the mainstream of American society, notwithstanding Justice Kavanaugh.

AMY GOODMAN: I wanted to go for a minute to what might have been one of the most compelling reasons for Trump to actually choose Brett Kavanaugh: Judge Kavanaugh also arguing that sitting presidents should be shielded from criminal or civil investigations. In a 2009 article for the Minnesota Law Review, Kavanaugh wrote, “I believe that the President should be excused from some of the burdens of ordinary citizenship while serving in office.” He went on: “The indictment and trial of a sitting President, moreover, would cripple the federal government.” So, David Cole, this is a man, Brett Kavanaugh, who actually worked with Ken Starr, who went after President Trump. Apparently, what? He changed his views? But at this point, he is the one, on the record, who says, “Don’t go after President Trump.”

DAVID COLE: Well, I mean, he’s —

AMY GOODMAN: And it’s going to be very significant if the Mueller case goes to the Supreme Court.

DAVID COLE: Absolutely. But I think the thing about Kavanaugh on the president is twofold. One, yes, he’s taken the position that there shouldn’t be criminal trials, and there shouldn’t be civil trials. The Clinton administration took the position there shouldn’t be civil trials, or at least they should be held off while the president is sitting. So, it’s not a radical position.

But he also took a very bold view of what a president can be impeached for, including lying and obstructing justice. So, you know, on the impeachment, he is the person who wrote the part of the Ken Starr report that justified the grounds for impeachment against President Clinton. And there was some thought that President Trump wouldn’t appoint him because Kavanaugh’s opinions on that question actually are against Trump’s interests.

AMY GOODMAN: Explain that further.

DAVID COLE: Well, because what is the most likely impeachment charge against President Trump, if there’s the will to impeach him? It will be obstruction of justice. And Kavanaugh’s report sets out the legal theory by which that is an appropriate — right? You’ve got people like Alan Dershowitz saying the president cannot obstruct justice — a crazy position. But you’ve got Kavanaugh saying, “No, the president can obstruct justice and can be impeached for obstructing justice.”

CECILE RICHARDS: I’d just — to, you know, respectfully —

AMY GOODMAN: Cecile Richards?

CECILE RICHARDS: Yes. I think, look, here’s what’s important. We may not know exactly where Judge Kavanaugh stands, but I can tell you: Every single anti-choice organization in the country has been celebrating since last night. It’s spread all over their webpages. They finally feel like they have got the fifth vote to overturn Roe v. Wade. And the fact is, 70 percent of people in this country believe that we should keep Roe v. Wade. It is overwhelmingly important to understand: the vast majority of people in this country. And so, while we may not know exactly where he stands, I think I do have are pretty good idea. And it is going to be incumbent in this process to establish that he in fact recognizes and supports the right of women in this country to make their own decisions about their pregnancy. We cannot wait another 40 years for this court to change, because, in the process, women are going to lose their rights, LGBTQ folks are going to lose their rights, women are going to lose their lives. And this is a really, really important nominating process.

JUAN GONZÁLEZ: Rachel?

RACHEL TIVEN: Can I — I want to emphasize how much people’s lives are at stake in the short term. I mean, I share David’s faith in the checks and balances of our system, and the ultimate perfectability especially if everybody goes out to vote — if they are allowed to. But I think what’s important to understand is, if the Affordable Care Act is utterly gutted and overturned by this court, that has a drastic effect on the lives of LGBTQ people and particularly people living with HIV. At that time that the ACA was first passed, 17 percent of people living with HIV had access to private health insurance. And that left a huge gap in care. The ACA has been transformative for the lives of people living with HIV and AIDS. This is a death sentence, if it is overturned by an activist court that doesn’t really care whether people live or die.

JUAN GONZÁLEZ: So, is your hope or expectation — is that there will be a groundswell of popular —

RACHEL TIVEN: I think we saw that the popular support —

JUAN GONZÁLEZ:  — activity in the next few months?

RACHEL TIVEN: The popular support for saving the Affordable Care Act was massive. Right? And so, if everybody who called their senators about the ACA calls their senators about this nomination, it is absolutely possible to say that Brett Kavanaugh’s views are not adequate to represent the American people.

AMY GOODMAN: Maine Republican Senator Susan Collins and South Carolina Republican Senator Lindsey Graham have both said they’ll oppose any nominee who is openly hostile to Roe v. Wade. This is Senator Collins speaking on CNN.

SEN. SUSAN COLLINS: I would not support a nominee who demonstrated hostility to Roe v. Wade, because that would mean to me that their judicial philosophy did not include a respect for established decisions, established law. And I believe that that is a very important, fundamental tenet of our judicial system.

AMY GOODMAN: In fact, Senator Susan Collins, though she has voiced concerns, has never opposed a Supreme Court nominee put forward by a Republican. Is that right, Fatima Goss Graves? And what does it mean to say if they openly oppose a woman’s right to choose? It’s sort of a way of telling Brett Kavanaugh, “Be very careful how you talk about your opposition.”

FATIMA GOSS GRAVES: This is why we need a higher standard. It is the truth that Susan Collins has never opposed a Supreme Court justice nominee from a Republican president. But we’ve also — you know, are in not typical times, where President Trump has promised that his nominee will overturn Roe v. Wade. So that is the question before her. And just having the nominee say, “I respect precedent,” is not going to be enough. You know, you need this sort of deeper probing into whether or not they really believe that Roe v. Wade was correctly decided, which we already know that Judge Kavanaugh has criticized in the past. And we also need to know whether or not he believes in the personal liberty line of cases, because the same anti-abortion forces are also the ones that are anti-contraception, that are attacking the range of types of personal relationships that people have. And these are not hypothetical matters. We know that over 20 states are poised to ban abortion as soon as Roe is overturned. And having someone like Judge Kavanaugh on the Supreme Court will only incentivize the many states that have already been trying to restrict abortion access again and again, making it harder for people to access the care that they need.