When President Trump Monday nominated Judge Brett Kavanaugh to the Supreme Court, he probably doomed the right to abortion, same-sex marriage, and maybe even contraception.
Kavanaugh, 53, has spent 12 years as a judge on the D.C. Circuit Court, often thought of as the second most powerful court in the country. Prior to that, Kavanaugh worked for the Office of the Independent Counsel under Ken Starr. There, he headed up the probe into the suicide of longtime Bill Clinton attorney and friend Vince Foster and eventually helped write the Starr Report about President Clinton and Monica Lewinsky.
“Judge Kavanaugh has impeccable credentials, unsurpassed qualifications, and a proven commitment to equal justice under the law,” Trump said during a prime-time address at the White House.
That much is true. There is no question that Kavanaugh is highly qualified and widely respected. In addition to serving as a judge, Kavanaugh teaches at both Harvard and Yale law schools. (Well-known liberal professor at Yale, Akhil Amar, published “A Liberal’s Case for Brett Kavanaugh” in the New York Times after the announcement.) His ethical reputation is impeccable.
But while Kavanaugh’s record on women’s and LGBT rights is sparse, it gives good reason to suspect that he could be the swing vote to strike down Roe v. Wade, the abortion-rights case. This, after all, is what Trump promised in 2016: that Roe would be “automatically” be overturned should he be elected. And Kavanaugh has been praised by numerous right-wing organizations.
In the case of Garza v. Hargan, the D.C. Circuit Court of Appeals held that an undocumented teenage immigrant was entitled to obtain an abortion without having to obtain familial consent (as is required in several states).
Kavanaugh vigorously dissented, asking, “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?”
Those are strong words, endorsing not only parental consent rules but enforcing them in extreme circumstances. If you are looking for signals that a Justice Kavanaugh would limit or overturn Roe, Garza is a giant red flare.
Surprisingly, however, Kavanaugh may not be conservative enough to survive the confirmation process. There is even talk that conservatives might revolt against Kavanaugh, as they did in 2005 against George W. Bush’s nomination of Harriet Miers. The reason? Many conservatives wanted Kavanaugh to cast doubt on the teenager’s right to get an abortion at all, which another dissenting judge did.
Legally speaking, that objection is absurd. Not unlike “judicial minimalist” Chief Justice John Roberts, Kavanaugh was discussing the case at issue, not some hypothetical issue. And he was responding to the circuit court’s holding, not writing an essay.
But there’s more. Some conservatives have pointed to dicta in another Kavanaugh opinion, a dissent in Priests for Life v. HHS, a case similar to Hobby Lobby involving the Affordable Care Act’s contraception requirement. While dissenting in favor of the Catholic religious organization objecting to the requirement, Kavanaugh wrote that the “the Government has a compelling interest in facilitating women’s access to contraception” because of a variety of factors, such as “reducing the number of unintended pregnancies would further women’s health, advance women’s personal and professional opportunities, reduce the number of abortions, and help break a cycle of poverty.”
Kavanaugh is writing here about the state’s interest in access to contraception, not whether an individual has a constitutional right to access it. Those are totally different questions. But Kavanaugh’s opinion doesn’t question the constitutional right either, which rests on the same foundations (substantive due process, privacy, family) as the right to obtain an abortion. It is reasonable to wonder whether Judge Kavanaugh’s dicta in Priests for Life suggests more flexibility on contraception and abortion than hard-right conservatives would like.
Politically, however, it might be enough to tar Kavanaugh with the “soft on abortion” label in the right-wing echo chamber, and all it takes is a single Republican senator to doom his nomination, assuming no Democrats cross the aisle. Already, the Democrats’ leader in the Senate, Charles Schumer, said he would oppose Kavanaugh.
As for LGBT issues, Kavanaugh’s record is thin, but enough to worry LGBT activists, who fear he will limit or overturn gay people’s constitutional right to marriage. In a case anticipating the Supreme Court’s Hobby Lobby case, Kavanaugh held that the Affordable Care Act’s requirement that qualified insurance plans include contraception coverage violated the religious freedom of employers.
That is the same logic that was at issue in last month’s Masterpiece Cakeshop case before the Supreme Court, which pitted the rights of LGBT people to be free from discrimination against a bakery owner’s rights to religious freedom. (The court ruled in favor of the owner on a technicality.)
Moreover, despite the misgivings of some conservatives, Kavanaugh was vetted by the Federalist Society and its de facto leader Leonard Leo. It is highly unlikely that the Federalist Society would approve a judicial candidate who didn’t toe the line on overturning Roe, and Obergefell v. Hodges, the same-sex marriage case.
While the Federalist Society can ask Judge Kavanaugh about his views privately and get a straight answer, it’s a certainty that when Congress asks, he will chant the mantras of “I will apply the law fairly and respect precedent” and “I can’t comment on any hypothetical case.”
That’s just like what Trump said in nominating Kavanaugh.
“In keeping with President Reagan’s legacy, I do not ask about a nominee’s personal opinions,” he said. “What matters is not a judge’s political views but whether they can set aside those views to do what the law and the constitution require. I am pleased to say that I have found, without doubt, such a person.”
In contrast, the Federalist Society’s Leonard Leo said following the nomination that "Brett Kavanaugh is among the most distinguished and respected judges in the country, with nearly 300 opinions that clearly demonstrate fairness and a commitment to interpreting the Constitution as it’s written, and enforcing the limits on government power contained in the Constitution.”
Unlike what Trump said, Leo’s statement is a dog-whistle to conservatives. “Interpreting the Constitution as it’s written” means that substantive due process, the doctrine underneath Roe, Obergefell —and even Griswold v. Connecticut, which forbids the government from banning contraception — is illegitimate. That means all those cases are on the chopping block.
And “enforcing the limits on government power” means curbing the power government agencies. Here, Kavanaugh’s record is crystal clear: he has voted to overturn several EPA decisions; sided with conservatives on net neutrality, holding that the Obama-era FCC exceeded its authority; and said in 2016 that the entire Consumer Financial Protection Bureau is unconstitutional.
Kavanaugh may be a relatively blank slate on abortion and LGBT equality, but the slate is covered with chalk when it comes to environmental, health, safety, and consumer protection regulations.
Earthjustice President Trip Van Noppen noted that “in one decision—later reversed by the Supreme Court—he blocked an Environmental Protection Agency rule that would limit dangerous interstate air pollution from power plants. In another case, he barred people who regularly drive on highways from suing to secure stronger car and truck safety standards.”
What’s most surprising about Trump picking Kavanaugh, though, are Kavanaugh’s stated views on presidents defending themselves against criminal investigations while in office.
After his stint working for Starr, Kavanaugh wrote in the Minnesota Law Review, that Congress should consider passing a law exempting the president civil and “criminal prosecution and investigation” while they are in office.
That may seem like Trump’s most fervent wish, and it has been interpreted that way by some left-leaning commentators. Actually, however, Kavanaugh’s reasoning cuts the other way, and poses a real risk for Trump.
“Having seen first-hand how complex and difficult that job is, I believe it vital that the President be able to focus on his never-ending tasks with as few distractions as possible,” Kavanaugh wrote. “The country wants the President to be ‘one of us’ who bears the same responsibilities of citizenship that all share. But I believe that the President should be excused from some of the burdens of ordinary citizenship while serving in office.”
In other words, it’s impossible to function as both the subject of a criminal investigation and the president of the United States. Moreover, Kavanaugh said, impeachment is the appropriate process for such matters.
It remains to be seen whether Kavanaugh will sail through his confirmation process, or be opposed by the right, or be opposed by a handful of moderates siding with the Democratic opposition.
Perhaps anticipating some of the criticism of Kavanaugh, American Conservative Union President Matt Schlapp (who, like Kavanaugh, is former Bush 43 administration official) wrote in The Hill that “Too many times, conservatives have been burned by Supreme Court nominees who lack a judicial record that demonstrates their approach.”
Yet Schapp distinguished Kavanaugh from such past candidates, saying “Judge Kavanaugh has consistently, boldly, and fearlessly applied textualism and originalism to a striking range of legal issues.”
That is exactly what advocates women’s and LGBT rights fear.