5 Things You Should Know About Judge Kavanaugh
On Monday, President Donald Trump announced his Supreme Court pick, Judge Brett Kavanaugh. Kavanaugh stands to fill the position left on the court with the recent retirement of Justice Anthony Kennedy, a historically conservative but sporadically left-leaning member of the court.
Kavanaugh was born and raised in D.C., having attended the prestigious Georgetown Preparatory Academy in his formative years before eventually graduating from Yale Law School in 1990. Kavanaugh is a former aide to President George W. Bush having served for two years as Senior Associate Counsel and Associate Counsel. Bush nominated him for the D.C. Circuit Court where he has served since 2006. He is favored by many conservatives as an originalist in the mold of Justice Clarence Thomas and former Justice Antonin Scalia.
J.D. Vance recently wrote in the Wall Street Journal: “[Kavanaugh] is a committed textualist and originalist, one whose time on the bench has revealed a unique ability to apply these principles to legal facts. He deeply believes in the constitutional separation of powers as a means for ensuring governmental accountability and protecting individual liberty. From the start of his career, he’s applied the Constitution faithfully, even when that made him a lonely voice. He has done so with particular tenacity on the issue that matters most to the president: taking power away from unelected bureaucrats and returning it to elected officials.”
Where Kavanaugh stands on five key issues:
1. Roe v. Wade
Kavanaugh has a solidly conservative past, yet displays a relatively thin record of public comments and legal decisions on abortion rights. That makes it difficult to say with certainty whether he would vote to overturn Roe v. Wade, the landmark 1973 ruling that established a constitutional right to abortion. At the same time, some of his statements provide a rough — if necessarily incomplete — sketch of his general views on the issue.
Kavanaugh has said that he views his judicial philosophy as straightforward. “A judge must be independent and must interpret the law, not make the law."
In an exchange with Sen. Chuck Schumer in 2006 during a hearing to consider Kavanaugh’s nomination to serve on the DC circuit, Kavanaugh said if he became a judge on the circuit court, he would uphold Supreme Court precedent with respect to Roe. “If confirmed to the DC Circuit, I would follow Roe v. Wade faithfully and fully. That would be the binding precedent of the court. It has been decided by the Supreme Court."
However, Trump said he would appoint a nominee who is in favor of overturning the landmark 1973 ruling. He has also stated that he did not discuss this with the potential nominees in their meetings, making Kavanaugh’s position relatively unclear.
Even if Kavanaugh’s plans on Roe v. Wade are unclear, he has a history of ruling conservatively with regard to abortion cases.
Last October, Kavanaugh dissented from a ruling of the DC Circuit that allowed an undocumented immigrant teen in detention to seek an abortion. In his dissent, Kavanaugh wrote the Supreme Court has held that “the government has permissible interests in favoring fetal life, protecting the best interests of a minor, and refraining from facilitating abortion." He wrote that the high court has "held that the government may further those interests so long as it does not impose an undue burden on a woman seeking an abortion." He said the majority opinion was "based on a constitutional principle as novel as it is wrong: a new right for unlawful immigrant minors in US government detention to obtain immediate abortion on demand." He added, however, that "all parties to this case recognize Roe v. Wade and Planned Parenthood v. Casey as precedents we must follow."
3. Religious Liberty and Obamacare
In a case involving a challenge under the Religious Freedom Restoration Act to the Affordable Care Act’s contraceptive mandate, Priests for Life v. HHS, Kavanaugh dissented from the majority and expressed sympathy for the religious challengers. Making reference to the Supreme Court’s ruling in Burwell v. Hobby Lobby, he wrote that “the regulations substantially burden the religious organization’s exercise of religion because the regulations require the organizations to take an action contrary to their sincere religious beliefs.”
However, Kavanaugh also wrote in his dissent, in a line that has drawn some conservative criticism, that Supreme Court precedent “strongly suggests that the government has a compelling interest in facilitating access to contraception for the employees of these religious organizations."
4. Presidential Impeachment
Some argue that Trump picked Kavanaugh for what he wrote in a 2009 article saying “ The indictment and trial of a sitting President, moreover, would cripple the federal government.” However, Kavanaugh went on to write: “If the President does something dastardly, the impeachment process is available. No single prosecutor, judge, or jury should be able to accomplish what the Constitution assigns to the Congress.”
Kavanaugh is known for his work with the counsel that led to President Clinton's impeachment, but he's since said he has some regrets about the impeachment situation.
5. The Second Amendment
In 2011, Kavanaugh dissented from a majority opinion of the DC Circuit that upheld a ban that applied to semi-automatic rifles in the District of Columbia.
In his dissent, he wrote that the Supreme Court had previously "held that handguns -- the vast majority of which today are semi-automatic -- are constitutionally protected because they have not traditionally been banned and are in common use by law-abiding citizens." Kavanaugh went on to say, "It follows from Heller's protection of semi-automatic handguns that semi-automatic rifles are also constitutionally protected and that DC's ban on them is unconstitutional."
Kavanaugh still has a long way to go before he gets his confirmation vote in the Senate. Monday night he said “Tomorrow I begin meeting with members of the Senate which plays an essential role in this process. I will tell each senator that I revere the Constitution. I believe that an independent judiciary is the crown jewel of our constitutional republic." In due course, Kavanaugh met on Tuesday with Senate Majority Leader Mitch McConnell, R-Ky. It is the first of many meetings Kavanaugh is expected to take on Capitol Hill as he lobbies senators ahead of his confirmation vote. With a 51-49 minority in the Senate, and Arizona Republican Sen. John McCain away getting treatment for brain cancer, Democrats not only need a united front to vote against Kavanaugh, but they also need to convince at least one GOP senator to break ranks in order to scuttle Kavanaugh’s nomination.
Both parties will be using this Supreme Court nomination debate to get voters to the polls during the midterm elections. Republicans want to get Kavanaugh confirmed as soon as possible and they do not want to take any chances of Democrats winning control of the Congress and blocking the vote. The group Demand Justice plans to spend at least $5 million to oppose President Trump’s nominee, targeting both Republican and Democratic senators in key states. Conservative group Judicial Crisis Network will begin running ads targeted at Democrats in red states who might vote for confirmation.
One thing is certain, the next few weeks and months will be arduous as both parties fight over Kavanaugh’s confirmation.