Fighting Kavanaugh, But Looking Beyond

With high drama playing out this week in the Senate Judiciary Committee involving the 11th-hour accusation of sexual assault against President Trump’s nominee to the Supreme Court, Judge Brett Kavanaugh, liberal Jewish groups opposing Kavanaugh’s confirmation may soon be facing a larger battle over issues central to the community especially women’s reproductive rights.

Those groups are continuing their fight to derail the judge’s path to confirmation, which was  dealt a blow this week as both Kavanaugh’s accuser, Christine Blasey Ford, a California professor, and Kavanaugh himself will testify Monday about the allegations before the Judiciary Committee.

But the groups are also looking beyond the vote to the next battleground, keeping volunteers and activists engaged in issues that may come before an ideologically altered high court, ranging from religious liberty and the separation of church and state to the possible overturning of Roe v. Wade.

“We are full-on engaged in this battle around the country, and we know that’s where it’s going to be won, not here in Washington,” Jody Rabhan, director of government relations and advocacy for the National Council of Jewish Women, told The Jewish Week.

At the same time, regarding the new allegations against Kavanaugh, Rabhan said: “The Senate can’t go forward with the vote; they have to go through the process of looking into this. It would be unconscionable not to.

“What we have seen and what we heard in the hearing is incredibly alarming. We left feeling like he was even more of an extremist and even more unfit for a lifetime seat on the court than we had previously thought,” said Rabhan.

Given the Republican majority on the Judiciary Committee and in the full Senate, though it is razor thin, derailing Kavanaugh’s nomination would represent an extraordinary move. Kavanaugh’s confirmation, which would represent President Trump’s second conservative appointment to the Supreme Court so far, would be cheered by conservatives who look forward to what they see as a correction to a court that has awarded liberals with rulings like United States v. Windsor, the case that legalized same-sex marriage.

Should Judge Kavanaugh be confirmed and take his place on a Supreme Court that would be the most conservative in a generation, the fight would broaden, shifting to targeting legislation that limits access to abortion and reducing funding to groups like Planned Parenthood.

In states like Alabama and Mississippi, anti-abortion politicians have been placing restrictions on abortions to make them nearly impossible.  Some of those laws have been struck down based on the 1992 case Planned Parenthood v. Casey, in which the high court ruled that laws that place an “undue burden” on women seeking abortions are unconstitutional.

But with dozens of abortion-related cases working their way through the federal court system with the potential to be chosen for a hearing by the Supreme Court, activists are worried that Kavanaugh’s appointment would allow the court to overturn portions of Casey, if not Roe v. Wade, the landmark 1973 ruling that established a woman’s constitutional right to an abortion. Kavanaugh has referred to Roe v. Wade as “settled law,” but not all Democrats on the Judiciary Committee were convinced, especially after an email surfaced among previously classified documents in which he seemed to call into question the notion that precedent could not be overturned. Republicans said he was paraphrasing what others had said about the Roe ruling and not giving his own opinion.

Judge Kavanaugh’s views on abortion rights, and whether he might move to overturn Roe if confirmed, are of special concern to NCJW. The group was part of a protest on Capitol Hill on the night the White House announced Kavanaugh’s nomination, calling on senators to oppose his nomination. Rabhan pointed to Kavanaugh’s comments about birth control — in which he inaccurately described birth control as abortion-inducing drugs — as a matter of particular concern to Jewish women.

NCJW’s efforts on abortion-related issues have extended far beyond Washington. The New York chapter has launched Pro-Truth, a campaign to expose “crisis pregnancy centers” that pose as abortion clinics but actually do not perform abortions. NCJW has also compiled resources for women across the country to advocate for reproductive healthcare and abortion access in their own districts, with graphics for posters, educational materials, and information about how to write a press release or op-ed.

The sisterhood at Congregation Rodeph Sholom in Manhattan, a member group of Women of Reform Judaism, was prominent in the creation of a coalition of houses of worship to advocate for reproductive healthcare access; the coalition offers community-wide programs about sex education and encouraged members to participate in the Women’s March.

Other groups with an interest in reproductive rights as well as issues like labor rights and LGBTQ rights have come out strongly against the judge’s confirmation. All of the Reform movement’s organizations have signed onto an interfaith letter raising questions about Kavanaugh’s record and have made statements condemning his confirmation.

Rabbi Jonah Pesner, director of the Religious Action Center of Reform Judaism, said that Kavanaugh’s positions abortion, LGBTQ rights and labor rights represent a threat to the Reform movement’s values. “If this judge is confirmed as a justice, we believe it would really represent a threat to those communities,” said Rabbi Pesner. “As a religious minority in America, we take very seriously the separation of church and state.”

Nearly 40 religious and interfaith organizations, including 12 Jewish organizations, have signed onto a letter to senators expressing concern about Kavanaugh’s record on religious liberty and the separation of church and state.

“The separation of church and state is the linchpin of religious freedom and one of the hallmarks of American democracy,” they wrote. “It ensures that each person has the right to choose whether to be religious or nonreligious without pressure from the government. … Judge Brett Kavanaugh, however, appears to reject the commonly accepted legal principle that the Establishment Clause creates a ‘wall of separation.’”

That issue also motivated Interfaith Alliance, an interfaith advocacy organization focusing on issues related to the separation of church and state, to sign onto the letter.

Rabbi Jack Moline, the group’s executive director, said, “We would like to hear people in all positions of authority in government, including Judge Kavanaugh, express the belief that there’s a level playing field for people of all perspectives of the varieties of faith and those people who profess no particular faith, and that the protections of the Constitution supersede any deeply held conviction.”

Not all Jewish political groups have been involved in efforts to raise questions about or oppose Kavanaugh’s confirmation. The Orthodox Union’s Advocacy Center, the political arm of the Orthodox synagogue association and a major supporter of day school voucher programs — an issue which Kavanaugh has shown sympathy towards in a prior case — has not made any public statements regarding Judge Kavanaugh’s confirmation.

In an op-ed in the Wall Street Journal, however, Nathan Diament, executive director of the OU Advocacy Center, praised President Trump’s earlier Supreme Court pick, Justice Neil Gorsuch, ahead of his confirmation hearing. “The OU has a general policy not to endorse or oppose judicial nominees pending before the Senate for confirmation,” wrote Diament, in an email to The Jewish Week. “We are observing that policy with regard to Judge Kavanaugh.”

With the Senate Judiciary Committee vote delayed (it had been set for Thursday), many Jewish activists will be taking a break from making phone calls and protesting as they head to synagogue for Yom Kippur on Tuesday night and Wednesday.

“On Yom Kippur morning we’ll hear the prophetic call of Isaiah challenging us about the fast that we’re engaging in, and he’ll say to us is this the fast that I want, but rather to feed the hungry, clothe the naked,” said Rabbi Pesner. Referring to Judge Kavanaugh, he continued. “This judge, if he becomes a justice, would tip the court in a way that many people would be excluded from that prophetic vision laid out by Isaiah.”