President Trump has nominated Judge Brett Kavanaugh of the D.C. Circuit Court of Appeals to fill the seat vacated by Justice Anthony Kennedy, who announced his retirement late last month. Judge Kavanaugh, 53, who has served on the D.C. Circuit Court of Appeals for 12 years, said that he was “deeply honored” to be nominated to replace Justice Kennedy, for whom he once clerked. If confirmed by the Senate, where the Republicans hold a razor-thin majority, Judge Kavanaugh, a principled strict constructionist, will help solidify a reliably conservative Supreme Court.
The left is in full resistance mode. It believes that the judiciary should serve as an additional but unelected political branch, whose duty it is to enact the left’s progressive policy agenda. They want activist justices who will treat the Constitution as a malleable instrument that can be twisted into the image of what the left thinks society should be.
Senate Minority Leader Chuck Schumer, kowtowing to his base, wasted no time in viciously attacking Judge Kavanaugh, claiming that his nomination puts abortion rights and health care protections for women “on the judicial chopping block.” Democratic Senator Ron Wyden of Oregon declared, “There can be no mistaking Trump’s Supreme Court nomination for anything but what it is: a direct attempt to overturn Roe. v. Wade.”
This is only a small taste of the demagoguery, outright lies and outrageous ad hominem attacks against Judge Kavanaugh we can expect in the weeks ahead. Those who revere the Constitution, and who believe, like Alexander Hamilton, that the “rules of legal interpretation” should apply the laws in “conformity to the source from which they are derived,” must get out in front with the truth about this eminently qualified “judge’s judge.”
Constitutional or statutory interpretation guided by a philosophy of judicial restraint begins with the actual words and structure of the text being interpreted. A judge's task is to identify and apply the principles embedded in the text, not to invent new ones. As Judge Kavanaugh explained in his essay entitled “The Judge as Umpire: Ten Principles,“ a judge must endeavor to “follow the law and not to make or re-make the law…you have to understand your proper role in the game: to apply the rules and not to re-make the rules based on your own policy views.”
Time and again, in approximately 300 opinions, including dissents, Judge Kavanaugh has tried to adhere to his best understanding of the text and its animating principles in interpreting the Constitution or a statute, including by applying limits on undue governmental interference with religious freedom, the right to bear arms and a free market economy.
In his dissenting opinion in Priests for Life v. HHS, (2015), for example, Judge Kavanaugh balanced individuals’ obligations and liberties under two intersecting statutes. He analyzed the government’s interest in promoting free contraceptives under regulations issued to implement the Affordable Care Act against the religious liberties protected under another federal statute, the Religious Freedom Restoration Act. He concluded that regulations issued under the Affordable Care Act requiring that Catholic religious organizations provide free contraceptives or file a special form that identifies or notifies their insurers, under the threat of monetary penalty for non-compliance, went too far. The government’s interest in facilitating access to contraception, he said, could have been achieved by using less restrictive alternatives that would not have placed as much of a burden on the exercise of religious freedom.
In 2011, Judge Kavanaugh dissented from a majority opinion of the D.C. Circuit that upheld a ban applied to semi-automatic rifles in the District of Columbia. Since the use of semi-automatic handguns by law-abiding citizens was already constitutionally protected under Supreme Court precedent, the use of semi-automatic rifles by law-abiding citizens should also be protected, he reasoned. Judge Kavanaugh wrote that “our task is to apply the Constitution and the precedents of the Supreme Court, regardless of whether the result is one we agree with as a matter of first principles or policy."
Judge Kavanaugh takes “the bedrock underpinnings of our system of separation of powers” seriously, as he articulated in a dissenting opinion regarding Environmental Protection Agency regulations covering greenhouse gases that he believed "exceeded its statutory authority." Judge Kavanaugh wrote: “The Framers of the Constitution did not grant the Executive Branch the authority to set economic and social policy as it sees fit. Rather, the Framers gave Congress, along with the President, that legislative role (subject to constitutional limits), and they assigned the Executive Branch the executive power to issue rules and enforce the law within the limits set by Congress.” Again, he made clear that his opinion was not based on policy preferences but rather on the need to “enforce the statutory boundaries” set by Congress.
For reasons also involving the principle of separation of powers, Judge Kavanaugh dissented when the D.C. Circuit upheld the Consumer Financial Protection Bureau, run by a single director, in a decision last January that overturned Judge Kavanaugh’s own prior panel ruling. He compared in his dissent the independent agencies collectively to “a headless fourth branch of the US Government,” which possess “enormous power over the economic and social life of the United States.” Without adequate oversight by the elected branches, they could “pose a significant threat to individual liberty and to the constitutional system of separation of powers and checks and balances.” At the very least, Judge Kavanaugh said, there should be a “multi-member structure," which would reduce “the risk of arbitrary decisionmaking and abuse of power, and helps protect individual liberty.” Contrary to the left’s caricature of what he wrote, Judge Kavanaugh was not expressing an anti-consumer sentiment. He was simply expressing a sentiment against unaccountable concentration of power in a single bureaucrat.
One of Judge Kavanaugh’s opinions likely to become a flashpoint in the fight over his confirmation involved the Trump administration’s refusal to allow a pregnant unaccompanied illegal immigrant, detained at the border, to be immediately released from detention for the purpose of receiving an abortion. The administration wanted to wait until a family member, relative or friend in the United States stepped forward as the minor’s “sponsor.” In his dissent from the full D.C. Circuit’s ruling entitling the illegal immigrant teen in custody to release for the purpose of receiving an abortion, Judge Kavanaugh wrote that the majority had wrongly created “a new right for unlawful immigrant minors in U.S. Government detention to obtain immediate abortion on demand, thereby barring any Government efforts to expeditiously transfer the minors to their immigration sponsors before they make that momentous life decision.” In his view the court majority did not follow “the many majority opinions of the Supreme Court, that have repeatedly upheld reasonable regulations that do not impose an undue burden on the abortion right recognized by the Supreme Court in Roe v. Wade.”
Judge Kavanaugh showed respect for the Roe v. Wade precedent. He did not dispute that the teen had a right under Supreme Court precedents to obtain an abortion in the United States, irrespective of how she got here or if elective abortion was illegal in her home country. However, the question was when and under what circumstances. Judge Kavanagh was not comfortable extending the reach of such precedents to create a new right for an illegal immigrant to receive an immediate abortion on demand on U.S. soil. “The minor is alone and without family or friends,” Judge Kavanaugh wrote. “She is pregnant and has to make a major life decision. Is it really absurd for the United States to think that the minor should be transferred to her immigration sponsor – ordinarily a family member, relative, or friend – before she makes that decision? And keep in mind that the Government is not forcing the minor to talk to the sponsor about the decision, or to obtain consent. It is merely seeking to place the minor in a better place when deciding whether to have an abortion. I suppose people can debate as a matter of policy whether this is always a good idea. But unconstitutional? That is far-fetched. After all, the Supreme Court has repeatedly said that the Government has permissible interests in favoring fetal life, protecting the best interests of the minor, and not facilitating abortion, so long as the Government does not impose an undue burden on the abortion decision.”
Judge Kavanaugh was applying Supreme Court precedents to the unusual circumstances before his court, not ignoring the precedents. Nevertheless, Judge Kavanaugh’s demonizers on the left will pounce on him for his supposedly “callous” disregard for an illegal minor immigrant’s “right” as a human being in U.S. custody to “choose” abortion on demand rather than remain temporarily in detention until a suitable sponsor can be found. The left will thereby merge the explosively emotional issues of detention of illegal immigrant children and the right to choose an abortion, which progressives believe incorrectly is guaranteed by Roe v. Wade in virtually all circumstances.
Ironically, there are also some pro-lifers who were upset with Judge Kavanaugh’s opinion. They did not think he went far enough in taking on Roe v. Wade itself, at least when it comes to illegal immigrants who want an abortion. The same was true with Judge Kavanaugh’s dissent in a case decided by the D.C. Circuit in 2011 upholding the constitutionality of Obama's Affordable Care Act. Judge Kavanaugh dissented on narrow jurisdictional grounds, angering some conservatives who thought he should have challenged Obamacare’s constitutionality. Judge Kavanaugh can’t win, since the left will still tag him as being against affordable health care.
Judge Kavanaugh will have some baggage to overcome, including his association with the independent counsel investigation of former President Bill Clinton and his drafting of parts of the Ken Starr report that led to Clinton’s impeachment. He worked on George W. Bush’s legal team during the 2000 Florida recount, after which he served as former President Bush’s White House lawyer and staff secretary, no doubt producing paper in abundance that Democrats will demand to see. Bush nominated Judge Kavanaugh for the D.C. Court of Appeals in 2003, but he was not confirmed until 2006.
Judge Kavanaugh’s law review article in 2009, arguing that Congress should consider enacting a statute exempting the president from both criminal prosecution and civil suits while in office, is already providing ammunition to his opponents seeking to portray Judge Kavanaugh as a tool of President Trump. He was theorizing on what Congress might do in this regard to provide breathing space to any president dealing with life-and-death issues, noting that Congress has the constitutional impeachment power to remove a president for malfeasance. He was not expressing an opinion as to what a court had the power to do on its own, if anything. Nevertheless, Judge Kavanaugh’s opponents can be expected to throw his words back at him out of context during his confirmation hearings to try and “prove” his intent to protect President Trump against a possible subpoena from Special Counsel Robert Mueller’s office or against an indictment.
The left will try to destroy Judge Kavanaugh by any means possible, as they successfully did with Judge Bork and tried to do with their “high-tech lynching” of Justice Thomas. They must not be allowed to succeed. Whatever minor faults Judge Kavanaugh may have, he is a towering intellect with a keen legal mind and a heart to go with it who belongs on the Supreme Court.