by Caleb Talley
U.S. Supreme Court Justice Anthony Kennedy turned the country on its head two weeks ago with the announcement that he would soon be retiring. Giving President Trump a second selection to the high court could shape it for a generation. Conservatives celebrated. Liberals wept (and cursed). And we all anxiously waited to see who Trump had on deck.
Enter Brett Kavanaugh, the U.S. Circuit Judge of the United State Court of Appeals for the D.C. circuit. He strikes fear in the heart of Democrats, who seem certain his appointment would mean the end of federally legal abortions and the Affordable Care Act.
Senate Minority Leader Chuck Schumer has already made it clear he will do everything he can to block Kavanaugh’s nomination, rallying fellow Democrats and making appeals to moderate Republicans like Sens. Susan Collins and Lisa Murkowski.
I suspect just about every Senate Democrat to stand in his way. If so, Kavanaugh’s nomination could be blocked by just one Republican defector. If red-state Democrat Sen. Joe Manchin, of very-pro-Trump West Virginia, decides to flip and support the president’s nominee in an effort to keep his job, Democrats will have to convince a pair of Republicans to vote him down.
And that’s not outside the realm of possibility. Collins and Murkowski voted with Democrats on Obamacare, and both have a relatively high score for Republicans from Planned Parenthood on their support of reproductive rights (i.e. abortion). It just happens that a number of social conservatives are not so thrilled with Trump’s pick, either.
The National Review’s David French, following Trump’s primetime announcement, lamented over the president’s bypassing of other more-conservative candidates whom he deemed worthier of the bench. He wanted Amy Coney Barrett, suggesting Kavanaugh was too establishment.
He’s not wrong. Kavanaugh is pure Washington. He was taught by Jesuits at Georgetown Preparatory School before attending Yale. He served as deputy counsel to President George W. Bush. He lives on the Maryland side of Chevy Chase, alongside accomplished Democrats in million-dollar homes. To much of the president’s base, he looks exactly like the sort of Washington elite Trump promised to get rid of.
It’ll be a showdown; there’s no doubt. And it’ll probably be ugly. Some have already dug up his high school yearbook, where he cited himself as the treasurer of the Keg City Club (“100 Kegs or Bust!”).
And expect to hear the term stare decisis as we move forward, a Latin phrase meaning “to stand by things decided.” Stare decisis is a principle guiding how courts go about their job of judging, and it’s based on the notion that the law should be certain and predictable. It suggests that judges should not change laws that have already been decided so that the public can rely on judicial pronouncements.
Countervailing principles, however, suggest that such a doctrine would render the courts unable to correct past errors and would require them to adhere blindly to old rules.
Which line of reason to Kavanaugh prescribe to? We don’t yet know. But to better understand who he is as a jurist, we have to dive into his record.
Abortion & birth control:This is the seemingly most concerning issue to Democrats and moderates as the fight for Kavanaugh’s confirmation goes forward. In a 2015 dissent, Kavanaugh argued that Obamacare’s mandate for contraception coverage infringed on the rights of religious organizations. He also dissented from a decision last year that permitted an undocumented immigrant to have an abortion.
Immigration: In one court care, Kavanaugh opposed granting special visas for Brazilian workers when American workers could do the same job. In a second case, he argued that a union election was void because undocumented immigrants has voted.
Net neutrality: Kavanaugh said the FCC’s net neutrality order was an unlawful First Amendment violation. That’s a good thing, folks.
Privacy: Kavanaugh’s record on privacy is a bit mixed. He rejected a challenge to the NSA’s warrantless collection of phone data, writing that it was consistent with the Fourth Amendment. He added that security concerns outweigh privacy concerns. In a case involving the need for a warrant to put a GPS tracker on a suspect’s car, Kavanaugh suggested the suspect’s property rights were likely violated when authorities tampered with his or her car.
Climate change: Kavanaugh is believed to be critical of many EPA rules from the Obama era. In 2012, he wrote a decision that rejected the EPA’s attempt to slow air pollution across state lines. In 2014, he wrote a dissent to an opinion over an EPA rule on toxic mercury from power plants saying the EPA had not weighed costs. He’s often leaned towards limiting EPA powers that were not specifically authorized by Congress.
Religion & schools: Kavanaugh also wrote a briefin 1999 that favored a Texas high school’s policy allowing the use of a public address system for student-led prayers at football games
Taxes:In 2014, Kavanaugh wrote that the IRS doesn’t have the power to regulate paid tax preparers, suggesting it was instead a decision for Congress or the president to make through new legislation.
Worker’s Rights:In a 2016 opinion, Kavanaugh wrote that employers could require workers to waive their rights to picket in arbitration agreements.
Affirmative Action:Kavanaugh wrote an amicus briefin 1999 on behalf of the Center for Equal Opportunity, arguing that a Hawaii law allowing only native Hawaiians to vote in elections for the Office of Hawaiian Affairs was unconstitutional.
There’s no telling what the coming weeks and months will have in store for Kavanaugh, the Senate and the American public. But if I were a betting man, I’d say we’re looking at our next Supreme Court Justice.
In Cash & Candor, Arkansas Money & Politics / AY Magazine Editor Caleb Talley aims to shoot it straight when it comes to business and politics in and around the Natural State. Talley comes to AMP by way of the Arkansas Delta, where he called balls and strikes at the Forrest City Times-Herald. He can be contacted by email at firstname.lastname@example.org. Read more Cash & Candor here.