Was Brett Kavanaugh’s Involved in Bush-Era Anti-Gay Marriage Agenda?

Having read U.S. Supreme Court decisions now for over 45 years, I have concern about justices who lack any apparent ability to show a shred of empathy for others and who feel that only their views and beliefs are correct and should, therefore, be imposed on the entire nation and its citizenry.  The late Antonin Scalia was such a justice.  Now, the nation is faced with privileged, white, straight male  nominee to the Court who sees Scalia as an icon and who just as frighteningly sees the occupant of the White House as basically above the law while in office.  That he was Trump's pick is no coincidence, in my view, especially due to his views on presidential exemption from prosecution and meaningful oversight.  Brett Kavanaugh also seems likely to favor the evangelical goal of rolling back LGBT rights and granting special privileges to those I call Christofascists.  Given the growing likelihood of Trump's criminality - and possible treason - being more fully exposed, Senate action on Kavanaugh's nomination needs to be delayed.  In addition, a more full review of his past actions, including the anti-gay marriage agenda launched by George W. Bush's administration, needs to be allowed.  At present, Republicans are opposing a full examination and suggesting there is something to hide from public review.  A column in Huffington Post argues why we need to know about Kavanaugh's past actions:

GOP leaders recently decided they wouldn’t request records that Supreme Court nominee Brett Kavanaugh authored, generated or contributed during his time as White House staff secretary under President George W. Bush. And they’re not budging from this position.

Their change in course came after a July 24 meeting between Trump White House counsel Don McGahn and Republicans on the Senate Judiciary Committee, the substance of which isn’t known. 

Last Friday, Sen. Patrick Leahy (D-Vt.) criticized his GOP colleagues for the curious and troubling about-face and took them to task in a letter to McGahn. He asked if McGahn had spoken with Kavanaugh about the records, as well as Bush’s personal attorney, Bill Burck, who is advising the former president on the release of his administration’s documents.

Democrats have rightly charged that it’s an appalling conflict to have Burck, who worked with Kavanaugh in the Bush administration, overseeing the release of the records. It’s also enormously problematic that Burck is McGahn’s personal attorney as well and is representing him ― in addition to former Trump advisers Reince Priebus and Steve Bannon ― in special counsel Robert Mueller’s probe of the Trump campaign’s possible ties to Russian interference in the 2016 U.S. election.

But the issues don’t end there. As Rachel Maddow noted on Twitter, Leahy also asked if McGahn had “reason to believe any of the records relate” to several pertinent issues, including “a proposed constitutional amendment to define marriage as a union between one man and one woman.”

Leahy’s letter calls into question the roles Kavanaugh and Burck played during the Bush administration and, more specifically, what involvement they had in the constitutional ban on same-sex marriage vigorously promoted by Bush-era Republicans ― a ban the Bush White House came to support in its first term.

Marriage equality and the broader fight for LGBTQ rights are continually put before the Supreme Court today, so it’s crucial for the public to know about Kavanaugh’s past  ― and appropriate for senators to ask questions about it. After all, there’s no way Kavanaugh and Burck, two key figures in the Bush White House, weren’t at the center of discussions about this controversial amendment. 

Kavanaugh, as White House staff secretary during that time, was certainly in the thick of these interactions and discussions. After Bush was re-elected, the president continued to give speeches in support of “a ban on same-sex marriage.” And controversy exploded in 2005 over revelations that the administration had paid right-wing columnists to promote its positions on marriage and the family.

By Trumpian standards, this scandal may seem like nothing, but the national uproar lasted for days. Bush was forced to address the issue, publicly urging his Cabinet secretaries to stop paying what amounted to thousands of dollars to radio host and columnist Armstrong Williams and syndicated columnist Mike McManus.

Also on the payroll: Syndicated columnist Maggie Gallagher, who received an additional $20,000 in a federal contract to write a report titled “Can Government Strengthen Marriage?” for a private group. She even testified before Congress promoting Bush’s policies. (In 2007, Gallagher would go on to co-found and lead the National Organization for Marriage, the driving force behind the movement against marriage equality that helped pass California’s Proposition 8 and other statewide gay marriage bans.)

Marriage equality is the law of the land today. But it continues to be challenged, not only by those who want to treat gay couples differently, like anti-LGBTQ bakers and other business owners, but by those who want to send the issue back to the states to decide.

Justice Neil Gorsuch, Trump’s first appointee to the Supreme Court, has invited state challenges to the Obergefell marriage equality ruling in a recent dissenting opinion. As I’ve noted, Gorsuch revered the late Justice Antonia Scalia, who, like Gorsuch, was an originalist . . . . Kavanaugh, who gave a speech in 2016 calling Scalia a “role model” and “hero.”

In that speech, Kavanaugh also pointed to Scalia’s dissent in Obergefell (Scalia called the ruling a “threat to American democracy”) as an example of what he liked about Scalia’s judicial philosophy. Scalia, he said, viewed the court as having “no legitimate role ... in creating new rights not spelled out in the Constitution.”

So what, exactly, are Republicans afraid the public will see in the Kavanaugh records from the Bush years, when the White House supported and promoted a federal marriage amendment? 

[T]he public should also know which issues Kavanaugh worked on in the Bush White House, how they may relate to cases coming before him, and if he would recuse himself from those cases.

The fact that there are likely hundreds of thousands more pages of records to review with regard to Kavanaugh, which will take more time, is no excuse. This is a lifetime appointment to the highest court in the land. The American public has the right to see how Kavanaugh interacted with, and perhaps weighed in on, one of the most important civil rights issues of our time. 

If one has nothing to hide, one doesn't seek to hide information.  You can only assume there is information in those records from the Bush years that Kavanaugh and his backers do not want the public to know about.  Given the incessant lies and hiding of information under the Trump/Pence regime, we need a full airing of all information, good and bad, on Mr. Kavanaugh.   

Trump, Brett Kavanaugh and the Effort to Destroy LGBTQ Rights

With the nomination of Brett Kavanaugh to the U.S. Supreme Court, the sense of dread and impending doom that has lingered over me and many others since the disastrous results of the 2016 presidential election has again intensified.  I suspect even straight LGBT allies do not fully appreciate the corrosive effect living in fear that one's rights will be curtailed or abolished at the whim of a malignant narcissist and a hate-filled minority empowered by a flawed U.S. Constitution which has concentrated too much power in rural, reactionary states. As a history nerd, if you will, who has read much about the rise of Hitler in Germany, I cannot help but wonder whether some of Hitler's future victims had similar fears as they saw Germany slowly embrace insanity and barbarism.  A piece in Huffington Post looks at the threat that Brett Kavanaugh may pose to LGBT Americans in particular and American democracy in general.  Here are highlights:

There was some attention ― and perhaps even a bit of hope ― this week after the anti-LGBTQ American Family Association came out immediately in opposition to Judge Brett Kavanaugh (urging members to call their senators), President Donald Trump’s nominee to the Supreme Court to replace retiring Justice Anthony Kennedy.

The AFA was rattled by Kavanaugh’s previous statements that precedent actually matters. Like National Review’s David French and other social conservatives, the AFA’s first choice for a nominee on Trump’short list was Judge Amy Coney Barrett, who has been very clear about how religious faith should guide a judge’s decisions.

But after a couple of days, the AFA walked that back . . . . Maybe the AFA realized something we all should be enormously concerned about: Kavanaugh’s beliefs on marriage equality and Obergefell v. Hodges might matter far less than his breathtaking views on expansive presidential power when it comes to the rights of LGBTQ people.

When the president is an authoritarian, after all, allowing him expansive powers will be far more efficient at curtailing the rights of minorities than waiting for the Supreme Court to weigh in on every case, which might take years to reach it.That, of course, is not to say that Kavanaugh isn’t on board with the anti-LGBTQ agenda. As I’ve been writing about for the past few years, the goal of anti-LGBTQ leaders is to turn gay marriage into second-class marriage. This was the plan well before the Obergefell ruling, as I sat in on a panel in 2014 at the Values Voter Summit where prominent anti-LGBTQ leaders discussed how they would do to marriage equality what they have done to abortion rights: chip away at it over years to diminish it dramatically. 

That assault on marriage equality has only just begun, with the “religious liberty” crusade lookingto carve out exemptions for those who oppose LGBTQ rights. Whether it is bakers and florists or adoption agencies, the idea is to allow religious objectors to discriminate.Thus with Kavanaugh, the question isn’t whether he believes in precedent or would overturn Obergefell outright. It’s about where he stands on carving out these exemptions.

Neil Gorsuch (for whom Collins voted) in his confirmation hearings called marriage equality “absolutely settled law.” . . . . But Gorsuch has gone on to assault LGBTQ rights, most notably in a dissent that was seen as an open invitation to the state of Texas to challenge or carve out exceptions to Obergefell.

We can expect the same of Kavanaugh. An analysis by political scientist Lee Epstein puts Kavanaugh to the right of Gorsuch and Justice Samuel Alito and just slightly to the left of the farthest-right justice, Clarence Thomas. It’s hard to imagine any scenario in which a justice in that position would rule in favor of LGBTQ rights. Cases will be coming to the Supreme Court regarding adoption laws and gay couples, the rights of transgender students and transgender people serving in the military and businesses denying service to LGBTQ people based on the business owners’ religious beliefs. . . . There’s no question another case regarding a business owner who wants a religious exemption to serving queer people will reach the court. 

But even more threatening is Kavanaugh’s view of expansive presidential power ― an issue Democrats are now focusing on,as it seems directly related to why Trump might have chosen him. Kavanaugh has written that Congress should pass a law that protects presidents from lawsuits,indictments and investigations like the Russia probe. And his decisions have shown he backs a concentration of power in the executive branch on international and domestic issues. He supports the unitary executive notion of presidential power. 

That could have dire consequences regarding Trump’s decisions to ban transgender people from the military and sign other draconian executive orders. A far-reaching religious liberty executive order ― which would have allowed for broad-based discrimination against LGBTQ people, women and other groups ― was slowed down by the administration last year and replaced with a series of less expansive ones, in part, it appears, because of fears the order would face a legal challenge.

But with Kavanaugh on the Supreme Court, such far-reaching orders could be deemed as passing constitutional muster, giving Trump further power to assault LGBTQ rights ― and the rights of many other minorities ― on his own, with the stroke of a pen. And that would bring Trump much closer to what seems to be his clear aim, establishing a dictatorship.

Be very, very afraid.