In a reality show-esque reveal, President Donald Trump announced his nomination of Judge Brett Kavanaugh of the DC Circuit Court of Appeals to the Supreme Court on Monday. Kavanaugh thanked the President for his support and talked about his bipartisan credentials, his Catholic faith, and his time coaching his daughter’s basketball team. Trump’s second Supreme Court nominee offers conservatives the chance to take a potentially more reliable majority on the court by replacing the swing vote of Anthony Kennedy. But instead of picking another ardent constitutionalist in the mold of Scalia, Thomas, or Gorsuch, Trump decided to go with a more moderate pick, one who could end up becoming another swing-vote unwilling to deliver effective textualist decisions.
Evangelical leaders were quick to support Trump’s pick including Ethics and Religious Liberty Commission President Russell Moore and Institute on Religion and Democracy President Mark Tooley. Many evangelicals reluctantly supported Trump in the 2016 election in anticipation of upcoming openings on the Supreme Court and the ramifications they would have on issues of religious freedom and abortion. Some religious leaders who have opposed Trump in the past have applauded Kavanaugh’s nomination. This includes Ed Stetzer, director of the Billy Graham Center at Wheaton College, who opposed Trump in the past but supports what he sees as a move to make the court more conservative. Other Evangelicals view Trump’s second Supreme Court pick as further affirmation of why they have supported Trump all along.
Leftists reacted predictably to Trump’s choice with outrage. Most were barely concerned with who the nominee actually was. Protesters showed up at the Supreme Court to voice their disapproval with pre-printed or even fill-in the blank signs. The Women’s March sent out an email complaining about the white supremacists coming to power, but forgot to replace the generic “XX” with the actual name of the nominee. Since his nomination, leftists have been scrambling to uncover scandals to take down Kavanaugh. The most serious accusations have ranged from pro-abortion group NARAL calling him a “frat boy” to unsubstantiated rumors that twenty years ago he might have said something mean about Hillary Clinton. Other commentators have condemned him for being too white, being too much of a baseball fan, being a good father, or being too Catholic.
Current Democratic Party darling Alexandria Ocasio-Cortez, a self-proclaimed socialist, voiced one of the most common critiques of Kavanaugh by furthering the false claim that he was nominated to shield Trump from criminal investigations. Her argument is based on a 2009 article Kavanaugh wrote for the Minnesota Law Review. In it, he talks about separation of power issues in both the Clinton and Bush administrations and notes that “the nation certainly would have been better off if President Clinton could have focused on Osama bin Laden” instead of being distracted by the Paula Jones sexual harassment case. Opponents have pointed to this as evidence that Kavanaugh would refuse to further any investigation into the Trump administration. However, Kavanaugh crucially notes that such protection would first require Congress to “pass the appropriate legislation” to postpone criminal investigations until after the president is out of office. Even then, Kavanaugh notes that the president would still be subject to the impeachment process from Congress.
Kavanaugh’s judicial philosophy leans toward textualism although he clerked for Justice Kennedy and looks up to him as his mentor. Kennedy was known for his judicial activism in crucial cases like Obergefell v. Hodges. Because Kavanagh has served as an appellate judge since 2006, we can look at an extensive record of decisions. Last year, Dr. Adam Feldman studied the perceptions of lawyers who had practiced before him to place Kavanaugh on a liberal/conservative spectrum of -3 to 3 with 3 being the most conservative. Kavanaugh received a rating of 1.54. Based on his rulings, he described Kavanaugh as “not a dyed-in-the-wool originalist like Scalia, … [but he] has relied on originalist principles in controversial cases.”
Kavanaugh clearly has a respect for originalism. In his dissent in the 2011 case on assault weapons bans Heller v. D.C, commonly known as Heller II, Kavanaugh pointed to the original interpretation of the Second Amendment stating “courts are to assess gun bans and regulations based on text, history, and tradition, not by a balancing test such as strict or intermediate scrutiny.” In another high-profile case on abortion, Garza v. Hargan, Kavanaugh dissented from the majority saying that they were introducing an entirely unprecedented right, one that was “based on a constitutional principle as novel as it is wrong” In another case he ruled against expanding the power of treaties through exploiting ambiguous language stating “Distorting statutory language simply to avoid conflicts with treaties would elevate treaties above statutes in contravention of the Constitution.” In another incidence of his textualist philosophy, Kavanaugh has criticized Chevron deference, the principle of administrative law giving priority to the executive branch over the courts. In a book review he praised Justice Scalia’s interpretation of Chevron deference and offered several possible solutions.
These textualist rulings are backed up by Kavanaugh’s own words. In a speech to the American Enterprise Institute last September, Kavanaugh discussed at length his admiration for Chief Justice William Rehnquist and his originalism. Many on the left try to advance the idea that the Constitution is somehow a living document, one whose words change their meanings over the years. Kavanaugh emphatically countered this concept in his speech.
“In the views of some, the Constitution is a living document, and the Court must ensure that the Constitution adapts to meet the changing times. For those of us who believe that the judges are confined to interpreting and applying the constitutional laws as they are written and not as we might wish they were written, we too believe in a Constitution that lives and endures and in statutes that live and endure. But we believe that changes to the constitutional laws are to be made by the people through the amendment process and, where appropriate, through the legislative process, not by the courts snatching that constitutional or legislative authority for themselves.”
Kavanaugh went on to praise Rehnquist’s logic in his dissent in the original Roe v. Wade case, and lauded Rehnquist’s defense of prayer in public schools in cases like Wallace v. Jaffree, Lee vs. Weisman, and Santa Fe vs. Doe where he was repeatedly in the minority.
These cases support Kavanaugh as a solidly originalist judge who will interpret the law as it was meant when it was written and respect precedent, but there are some major concerns. In the Garza v. Hargan case, while he ruled against an illegal alien’s right to get an abortion, he did so on the basis of the “undue burden” standard laid out in Planned Parenthood v. Casey (1992). He upheld a lower court’s requirement for the alien to first get a sponsor before making the decision to abort the baby. This narrow ruling failed to categorically oppose abortion or contest either Planned Parenthood v. Casey or Roe v. Wade.
In another narrow ruling, Kavanaugh ruled on the side of religious freedom in Priests for Life v. HHS, an Obamacare related case on whether the government can force religious organizations to provide contraception. However in his ruling he referred to the previous year’s Burwell v. Hobby Lobby decision and stated “Hobby Lobby strongly suggests that the Government has a compelling interest in facilitating access to contraception for the employees of these religious organizations.” and sided with Priests for Life because the government did not take the “least restrictive means” to achieve this compelling interest.
It is possible that Kavanaugh believed that as an appellate judge he was bound to respect the rulings of the Supreme Court whether he agreed or not. In his dissent he stated “It is not our job to re-litigate or trim or expand Supreme Court decisions. Our job is to follow them as closely and carefully and dispassionately as we can.” While this judicial restraint is frequently in line with originalism, it calls into question how he will rule on Roe v. Wade, a well-established case that lacks a constitutional basis.
His most activist decision was in Seven Sky v. Holder in 2011, where he upheld Obamacare on the basis that the penalties it imposes are a tax. The Anti-Injunction Act requires that plaintiffs cannot bring suit against taxes unless they have been assessed them. “That straightforward chain of logic” meant the court could not rule on Obamacare in that case. U.S. Attorney General Eric Holder’s office used this new line of reasoning to convince Chief Justice John Roberts to agree with Kavanaugh’s decision and uphold Obamacare in the 5-4 ruling on Sebelius. In 2015, Kavanaugh ruled against another challenge to Obamacare in Sissel v. HHS in a blow to Congressional power. Referring to government forcing people to buy a product like health care as a tax is a massive stretch of the Constitution, and both of these crucial rulings stand in stark contrast to Kavanaugh’s reputation as an originalist.
The confirmation vote for Kavanaugh is expected to be along tight party lines as Republicans need to avoid any defections in the Senate. Choosing a polarizing figure like Kavanaugh, who Senator Richard Durbin (D-IL) called “the Forrest Gump of Republican politics” puts moderate Democrats in a difficult position. Three Democratic senators from states Trump won in the 2016 election, Heidi Heitkamp (D-ND), Joe Manchin (D-WV), and Joe Donnelly (D-IN) were willing to confirm Neil Gorsuch last year. A survey released this week of respondents from 10 states where Democratic senate seats are up for grabs showed how Democrats already have a slim chance of retaking the Senate. Kavanaugh’s nomination forces Democrats in tight races like Donelly and Heitkamp into a difficult choice: hold the party line and potentially lose their seats or accept the inevitable and side with Republicans. Further complicating the situation for red-state Democrats, Minority Leader Chuck Schumer (D-NY) has warned of punishments for any Democrats who defect. Majority Leader Mitch McConnell has said that the Senate plans to vote on confirmation, “this fall” which likely means some time after the Supreme Court reconvenes in October but before the November elections.
Kavanaugh seem to be a relatively moderate choice, one who is politically conservative but has chosen to take narrow rulings and has an inconsistent record on judicial activism. His stated support of textualism and originalism is undermined by his rulings on Obamacare and he has failed to take the chance to issue sweeping rulings on constitutional rights in crucial cases like Garza and Priests for Life. If the Court is faced with cases similar to the recent Masterpiece Cakeshop case, as they are likely to in the near future, Kavanaugh may follow the lead of the moderate justices who chose to make a narrow ruling instead of definitively answering the question of first amendment rights. While far from a terrible choice, if confirmed Kavanaugh looks to line up somewhere between Justice Roberts and Justice Alito with a chance of falling into the footsteps of his mentor Justice Kennedy and acting as a swing vote.