OPPOSING THE NOMINATION OF BRETT KAVANAUGH TO THE SUPREME COURT OF THE UNITED STATES

WHEREAS, in its 2017-18 session, the U.S. Supreme Court issued decision after decision promoting the interests of the powerful and wealthy at the expense of ordinary Americans and the most vulnerable amongst us, including in cases that:

· attacked the rights of public sector workers to organize and exercise voice through unions (Janus v. AFSCME);

· upheld the Muslim travel ban (Trump v. Hawaii);

· upheld voter suppression laws (Husted v. A. Philip Randolph Institute);

· permitted racial gerrymandering (Abbott v. Perez);

· failed to strike down extreme partisan gerrymandering (Gill v. Whitford);

· struck down a law requiring that women be provided with complete information on their reproductive health choices (National Institute of Family and Life Advocates v. Becerra);

· limited the ability of private sector workers to use the courts to sue for their rights (Epic Systems v. Lewis); and

· ruled in favor of a baker who had refused service to a gay couple seeking to purchase a wedding cake (Masterpiece Cakeshop v. Colorado Civil Rights Commission); and

WHEREAS, in recent years and in these cases, the Supreme Court majority has adopted a stance that, in the words of Justice Elena Kagan in her powerful dissent in Janus v. AFSCME, has transformed the court into “black-robed rulers overriding citizens’ choices,” as the majority has demonstrated a willingness to override long-established jurisprudence and ignore fundamental constitutional principles in a drive to impose extreme conservative policies that lack sufficient public support to be passed as legislation; and

WHEREAS, many of these cases have, again in the words of Kagan, “weaponized the First Amendment,” perverting the court from its intended purpose as a guarantor of the free political expression essential for democracy into a tool that serves the power of the elite; and

WHEREAS, in the 2017-18 session, virtually all of the cases listed above were decided by a narrow 5-4 vote, with Justice Neil Gorsuch providing the fifth vote for the right-wing Supreme Court majority; and

WHEREAS, Gorsuch holds his seat on the court only because of the extraordinary refusal of the Senate Republican leadership to hold hearings and a confirmation vote on Merrick Garland, the nominee of President Barack Obama for that seat, on the grounds that voters must be able to voice their preference for who should sit on the court in elections many months away; and

WHEREAS, Justice Anthony Kennedy, who most often sided with the right-wing majority, including in the 2017-18 cases identified above, announced his retirement at the end of this session; and

WHEREAS, according to news reports, the timing of Kennedy’s retirement was based on an inappropriate agreement between Kennedy and President Donald Trump on who would replace him on the court; and

WHEREAS, Trump’s nominee to replace Kennedy, Judge Brett Kavanaugh, was vetted by the right-wing Federalist Society, which found Kavanaugh to be a forceful advocate of the legal philosophy and practices of the current right-wing Supreme Court majority; and

WHEREAS, the judicial record, the scholarship and the published views of Kavanaugh, and in particular his writings on the rule of law and executive power, all indicate that he would be a reliable vote for:

· protecting Trump from investigations into wrongdoing and criminal activity, including the current investigation of independent counsel Robert Mueller into connections between Trump, his family and close associates, on the one hand, and the interventions of the Russian regime of Vladimir Putin in the 2018 U.S. elections on behalf of Trump, on the other hand;

· removing limits on the exercise of executive power by a Trump presidency that is already engaging in authoritarian actions;

· undermining collective bargaining in the public sector, and the rights of working people more generally;

· upholding vouchers and other privatization schemes that undermine public goods and services, such as public education;

· overturning regulations to protect the environment, consumers and others;

· overturning the key provisions of the Affordable Care Act, including its guarantee of health insurance for Americans with pre-existing medical conditions;

· limiting the reproductive freedom of women, including their right to choose an abortion and to obtain and use birth control;

· limiting the civil rights of people of color, immigrants and refugees, adherents of minority religions and LGBTQIA people; and

· undermining free and fair elections by upholding voter suppression measures, extreme gerrymandering and the unlimited flow of corporate money into the political process; and

WHEREAS, if Kennedy’s seat on the Supreme Court was to be filled by Kavanaugh, the court would be moved to the far right for a generation, as an Axios study^[1]has shown that Kavanaugh would be at the extreme right end of the court, next to Justice Clarence Thomas, and Kavanaugh is relatively youthful, allowing him to serve for decades:

RESOLVED, that the American Federation of Teachers affirms its support for a Supreme Court that is faithful to its constitutionally ordained role in American government as a check and balance on the abuse of power, especially by government, and as a guarantor of the rights of ordinary Americans and the most vulnerable amongst us; and

RESOLVED, that since the assumption of Kavanaugh to the Supreme Court would deepen and extend the current right-wing court majority that has departed so radically from this constitutional role, the AFT is opposed to his nomination; and

RESOLVED, that the AFT will defend American democracy against President Donald Trump successfully confirming Judge Brett Kavanaugh and using the Supreme Court to shut down the Robert Mueller investigation; and

RESOLVED, that the AFT calls upon the Senate to postpone consideration of the Kavanaugh nomination until after the 2018 elections: Given the precedent established by the Senate majority in the nomination of Judge Merrick Garland to the Supreme Court, a refusal to allow the electorate the same voice in who will fill the current open seat can only be understood asan undemocratic exercise of raw political power, without principle or legitimacy, that will tarnish permanently the process and any confirmed justice; and

RESOLVED, that the AFT will work with its affiliates to educate our members on the dangers posed by the Kavanaugh nomination, mobilizing them in support of a democratic confirmation process and in rejection of Kavanaugh and any other nomination to the Supreme Court that would move the court further away from its constitutional role in American government; and

RESOLVED, that the AFT will work with its friends and allies in the labor movement, the civil rights movement, the feminist movement, the LGBTQIA movement, the immigrant rights movement and the environmental movement to defeat the nomination of Kavanaugh.