The White House / Public domain via wikimedia commons
President Trump nominates Judge Brett Kavanaugh for the U.S. Supreme Court. (The White House / Public domain via wikimedia commons)

President Trump this week nominated Yale Law School alumnus Brett Kavanaugh to fill Justice Anthony M. Kennedy’s seat on the Supreme Court, drawing immediate opposition from Senate Democrats who want to slow down the confirmation process past this fall’s mid-term election.

Connecticut Senators Richard Blumenthal and Chris Murphy did not hesitate in announcing they would vote against Kavanaugh who has served for more than a decade on the D.C. Circuit Court.

Blumenthal, a member of the Senate Judiciary Committee, stood outside the U.S. Supreme Court on Tuesday where he claimed that Kavanaugh would swing the balance of the Supreme Court conservative — posing threats to laws aimed at curbing gun violence, pollution and protecting a women’s right to obtain an abortion.

“I’m here with sadness to say, Judge Kavanaugh you don’t belong in this building as a Justice,” Blumenthal said.

A day later, Blumenthal took to the Senate floor to criticize Trump over his nomination saying he had “allowed himself to become a puppet of rightwing fringe groups — the Federalist Society and the Heritage Foundation” by turning to them for a list of nominees they would accept on the Supreme Court.

“They produced for him a list. He selected from that list, and the rest is an unfortunate, deeply tragic chapter in American history,” he said.

Murphy has similarly spoken out against Kavanaugh, raising concerns that he could threaten protections that the Affordable Care Act provides to people with pre-existing conditions who might otherwise be unable to purchase affordable health insurance.

“The President is angry that the American people won’t allow Congress to unwind the protections for people with pre-existing conditions, so he is going to the courts. He is trying to rig a Supreme Court such that it will strike down protection for pre-existing conditions, and he has a case ready to move the Supreme Court to do just that,” he said.

Murphy was referring to Texas v. United States in which 20 Republican-led states contend that the ACA provision requiring most Americans to carry health insurance soon will no longer be Constitutional and that, as a result, consumer insurance protections under the law will not be valid, either. The U.S. Justice Department has declined to challenge the plaintiffs.

“I have no doubt that Judge Kavanaugh will rule against the government and in favor of the plaintiffs if that case reaches the Supreme Court,” Murphy said, citing Kavanaugh’s dissent in Seven-Sky v. Holder.

In his dissent, Murphy said that Kavanaugh sent a “clear” message that he would be willing to take away protections against pre-existing condition discrimination should he be elevated to the court in writing in the dissent that the powers of the Affordable Care Act are unprecedented and predicted that left unchecked by the courts the ACA would “usher in a significant expansion of Congressional authority with no obviously principled limit.”

A New York Times fact check of statements similar to Murphy’s found the claims against Kavanaugh were overstated, and that he had refrained from making broad pronouncements about the constitutionality of the Affordable Care Act.

In Seven-Sky, the arguments focused on whether the Affordable Care Act mandate for individuals to purchase health insurance or face a “penalty” was actually a tax. Murphy cited Kavanaugh’s dissent:

“Under the Government’s Commerce Clause theory, as it freely acknowledged at oral argument, the Government could impose imprisonment or other criminal punishment on citizens who do not have health insurance. That is a rather jarring prospect.

“The Affordable Care Act does not impose such criminal penalties. But if we approve the Affordable Care Act’s mandate under the Commerce Clause, we would necessarily be approving criminal punishment — including imprisonment — for failure to comply not only with this Act but also with future mandatory purchase requirements. Moreover, despite the Government’s effort to cabin its Commerce Clause argument to mandatory purchases of health insurance, there seems no good reason its theory would not ultimately extend as well to mandatory purchases of retirement accounts, housing accounts, college savings accounts, disaster insurance, disability insurance, and life insurance, for example. We should hesitate to unnecessarily decide a case that could usher in a significant expansion of congressional authority with no obvious principled limit.

“That is particularly so given that the government traditionally has achieved its objectives in these areas through Taxing Clause legislation that employs customary and permissible tax incentives and disincentives on certain behavior.”


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