Supreme Court Justice Brett Kavanaugh is Likely to Disappoint

Jul. 11, 2018
by Bob Adelmann

Kavanaugh’s credentials are impressive. They’d have to be in order to beat out the other four candidates Trump was considering to replace retiring Supreme Court Justice Anthony Kennedy. The top three were so close that it is reported that the president didn’t really make his final decision until just before his announcement Monday night.

Kavanaugh, age 53, holds BA and JD degrees from Yale College. He spent his early years in private practice in Washington, DC before accepting a position as a law clerk for Supreme Court Justice Anthony Kennedy in 1993. He became associate counsel to President George W. Bush in 2001. In 2003 he was named Assistant to the president and his staff secretary before being nominated to the D.C. Circuit. That nomination was bottled up for nearly three years before clearing the Senate in 2006.

Kavanaugh took significant roles in drafting the Starr Report, which urged the impeachment of President Bill Clinton, and led the investigation in the “suicide” of Clinton aide Vince Foster.

In the last 12 years, Kavanaugh has drafted more than 300 opinions while on the bench of D.C. Circuit Court of Appeals.

Those opinions, by and large, please limited government Constitutionalists and social conservatives. For example the EPA has long been a target of Kavanaugh’s opinions and dissents, criticizing how the agency under Obama implemented “clean air” rules while ignoring the costs of such rules borne by the agency’s targets.

He has also been highly critical of the unconstitutional nature of the Consumer Financial Protection Bureau (CFPB). He ruled against it in 2016 because its director couldn’t easily be removed by the president. In general, wrote Kavanaugh, “independent agencies collectively constitute, in effect, a headless fourth branch of the U.S. government. They hold enormous power over the economic and social life of the United States. Because of their massive power and the absence of Presidential supervision and direction, independent agencies [like the CFPB] pose a significant threat to individual liberty and to the constitutional system of separation of powers and checks and balances.”

He supported religious liberty in the famous case Priests for Life v. HHS where he wrote that “the regulations [imposed by the HHS] substantially burden the religious organizations’ exercise of religion because [those] regulations require the organizations to take an action contrary to their sincere religious beliefs.”

But he included a line that aroused concerns among religious conservatives, adding 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.”

Although Kavanaugh has stated that judges should not make law, his judicial record shows that he relies heavily on past judicial precedents that have often been in conflict with the clear language of the Constitution.

For example, in another case Kavanaugh also noted that precedent, to him, carries the weight of settled law: “all parties to this case [Garza v. Hargan] recognize Roe v. Wade and Planned Parenthood v. Casey as precedents we must follow.”

Happily, this just isn’t so. In nearly a dozen cases, the highest court has corrected itself, or had itself corrected through Constitutional amendments. In 2003, the Supreme Court decided in Lawrence v. Texas to reject its previous ruling in Bowers v. Hardwick upholding Texas’s anti-sodomy law. Wrote Justice Anthony Kennedy, “Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled.”

In 2010, the Supreme Court’s ruling in Citizens United v. Federal Election Commission overturned Austin v. Michigan State Chamber of Commerce (1990). In Citizens, the court ruled that corporate political spending is legal for a simple reason: money equals speech and therefore corporations have the same right to free speech as do individuals.

The 13th and 14th Amendments in effect overturned one of the most pernicious decisions by the Supreme Court: Dred Scott v. Sandford (1857). The original 6-3 decision declared that black people were inferior to whites, weren’t and couldn’t be U.S. citizens, had no right to file federal lawsuits, and were property that couldn’t be taken from their owners without due process.

And the Supreme Court corrected itself in 1954 with its opinion in Brown v Board of Education of Topeka, Kansas, which overrode Plessy v. Ferguson (1896) in which the court ruled that Louisiana’s “separate but equal facilities” laws were constitutional.

But with Kavanaugh holding the view that past precedents carry the weight of law and are therefore settled, then Constitutional errors like those made in Roe v. Wade (where rights were conjured out of whole cloth found nowhere in the Constitution and used to justify the murder of millions of infants) can never be addressed and corrected.

Those expecting great things from Kavanaugh may therefore be disappointed. But present reality is that the names of those Trump rejected in favor of Kavanaugh remain on his list for future reference. With Ginsburg just turning 85 in March and Breyer turning 80 in August, Father Time is more than likely going to give the president at least one if not two more chances to bring the Supreme Court back to its proper role. Those names on his list might just come in very handy perhaps sooner than anyone thinks. While it may be too soon to get one’s hopes up over Kavanaugh’s presence on the court starting in October, it is helpful to remember that the freedom fight isn’t won or lost in a single battle, but inch by inch. 

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Sources:

MarketWatch.com: Trump set to make Supreme Court even more pro-business with Kavanaugh pick

CNBC.com: Trump nominates Brett Kavanaugh to the Supreme Court

The Wall Street Journal: President Trump Chooses Brett Kavanaugh for Supreme Court Vacancy

LifeNews.com: Meet Judge Brett Kavanaugh, a Supreme Court Finalist Who Says Government Can Protect Unborn Children

JudicialActionGroup.org: Brief Comparison of Two Leading Supreme Court Prospects: Judge Brett Kavanaugh (D.C. Cir.) and Judge Amy Coney Barrett (Seventh Cir.)

The Wall Street Journal: Brett Kavanaugh Nomination Kicks Off Fights in Divided Senate

Background on Brett Kavanaugh

CNN.com: Where Supreme Court nominee Brett Kavanaugh stands on key issues

10 Overturned Supreme Court Cases

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