Recommended Messaging on the Nomination of Brett Kavanaugh to the U.S. Supreme Court
On Monday, July 11, President Trump announced D.C. Circuit Judge Brett Kavanaugh as his nominee to replace retiring Supreme Court Justice Anthony Kennedy. Though very conservative, Justice Kennedy has been the crucial swing vote on a range of important social justice questions, from reproductive rights, to LGBTQ equality, to affirmative action. By contrast, President Trump’s selection of Judge Kavanaugh to replace Justice Kennedy undermines those and many other legal protections. Replacing Justice Kennedy with such an extreme nominee — especially during a time in which our system of checks and balances is needed more than ever — would have a lasting and devastating impact on the balance of the Court, and on our country’s most long-held and fought-for values.
What follows is advice for talking about the nomination, demanding rigorous and careful scrutiny of any nominee by the Senate, and ensuring that confirmation is given only to a nominee with a demonstrated commitment to our nation’s highest constitutional values and liberties. While this memorandum does not touch in great detail on Judge Kavanaugh’s extensive record, it does provide guidance and recommendations on core themes around how to effectively communicate not only about what’s at stake with his nomination but also – and in some ways most importantly – what’s at the heart of this critically important nomination process.
We recommend emphasizing four themes:
1. Our Nation’s Constitutional Values
Insofar as the nation’s focus is – and should be – on Brett Kavanaugh’s record on a range of issues, it is essential to remember that Supreme Court nomination debates are about the values that our nation and Constitution stand for and the extent to which Kavanaugh, or any nominee, will demonstrably uphold them. Values including Freedom, Dignity, Fairness, Equal Opportunity, Equal Voice (Democracy), and Accountability (our System of Checks and Balances) are particularly important and at risk with this nomination. In addition, these values are inextricably connected to human dignity and the essential elements in peoples’ lives that relate to their ability to prosper with and for their families. Important issues such as access to quality healthcare and a woman’s right to privacy are among those at stake in the debate. These issues should be discussed explicitly in terms of values, what they mean, and why they’re so important to people.
The discussion about these values and issues should not strictly focus on Kavanaugh. Now is the moment to remind people of the kind of country we want to be, drawing on our best ideals. In plain terms, talk about the critical role of the Supreme Court, Brett Kavanaugh’s potential role in it, and how it is essential that the Court uphold those core values. For some audiences, for example, describing examples and times in our history when we have lived up to the Constitution’s stated value of Equal Justice Under Law is inspiring. And discuss the questions that arise regarding the obligation that Kavanaugh would have to uphold these core values.
2. Kavanaugh’s Impact on People’s Lives and on the Nation
Remind audiences that if confirmed, Brett Kavanaugh would be deciding immediately and for decades what our Constitution means and how it will affect our lives. In addressing your specific audience, talk about the basic rights and expectations that they and others in our country rely upon that are now at serious risk — including access to health care, the ability to marry the person you love, to plan a family, and to draw on diversity as our nation’s greatest strength. Don’t take the bait by repeating or debating the metaphor of Supreme Court Justices as umpires or referees — that’s not what justices do, and it frames the debate inaccurately and not on your terms.
3. Thorough and Rigorous Scrutiny
Demand that the Senate (starting with the Judiciary Committee) fulfill its constitutional responsibility to thoroughly and closely examine Kavanaugh, including his extensive past record, as well as his candid answers to revealing and insightful questions. At the same time, the news media must have access to and report facts and perspectives that enable the public to reach its own informed conclusions.
There will inevitably be efforts to rush Kavanaugh through to confirmation. Not only must these efforts be rejected, but serious consideration must be given to whether the confirmation process should be suspended until the Special Counsel Investigation of the President has concluded.
4. Hope and Action
Especially during these very challenging times, it’s important to remind our base that we have the power to demand and achieve a fair process that results in an acceptable nominee. Remember to highlight what we want moving forward — and how we can get there — in addition to pointing out what we’re up against. Remind people that the process must take the time to ensure that our Constitution and country’s values are upheld, and it could take years to accomplish that. Point to recent activism like the protests against President Trump’s cruel border policy as clear evidence that our voices and activism can, and do, make a difference.
The United States Supreme Court represents the last line of defense for our country’s most cherished rights, and for our democracy’s very stability. The legacy of its rulings endures for generations, and its role in our government as the final arbiter of what the Constitution means must be bolstered, especially for audiences who will be most adversely affected by a nominee who is hostile to civil rights and liberties.
While the challenge is great, and the stakes are high, the ideals of freedom and equality are far too important to be ignored in a hasty or perfunctory confirmation process. Senate consideration of Brett Kavanaugh is only one piece of that challenge, which presents an opportunity for us to tell the story of the America we can and should be.