Supreme Court associate justice nominee Brett Kavanaugh attends a meeting with U.S. Senate Majority Leader Mitch McConnell at McConnell's office in the U.S. Capitol in Washington July 10.
Supreme Court associate justice nominee Brett Kavanaugh attends a meeting with U.S. Senate Majority Leader Mitch McConnell at McConnell's office in the U.S. Capitol in Washington July 10. (Mandel Ngan/AFP/Getty Images)
Nation | Jul. 12, 2018
Supreme Court Nominee Brett Kavanaugh: A Conservative Judge, Formed by Faith
Assessing the background of President Trump’s new pick.
Brian Fraga
Pro-life leaders and legal scholars are praising President Donald Trump’s decision to nominate Judge Brett Kavanaugh, who sits on the D.C. Circuit Court of Appeals, to the U.S. Supreme Court.
If confirmed by the U.S. Senate, Kavanaugh, a practicing Catholic who serves meals to the homeless as a volunteer for Catholic Charities and coaches CYO basketball in the Washington, D.C., area, would succeed Justice Anthony Kennedy, who will retire July 31.
Kavanaugh, 53, who clerked for Kennedy and before that served as a staff secretary and senior associate counsel for President George W. Bush, is well-respected as a jurist with a legal philosophy of interpreting the Constitution as it is written.
“He’s a person of the highest intellect, very much in the mode of Neil Gorsuch,” said Robert George, a constitutional scholar and the McCormick Professor of Jurisprudence at Princeton University, referencing Trump’s first appointment to the Supreme Court.
In a conference call with reporters shortly after Trump announced Kavanaugh’s nomination July 9, George and Marjorie Dannenfelser, the president of the Susan B. Anthony List, welcomed the news as a positive step for the pro-life movement.
“We have a man who’s devoted to interpreting the text of the Constitution as it is written and as it applies to today’s debate,” said Dannenfelser, who added that the Susan B. Anthony List and other pro-life organizations across the country will be “all in” to rally support for Kavanaugh.
“We’ve got a battle ahead of us,” Dannenfelser said. “It’s a moment the pro-life movement has been looking for for decades. It’s a pivotal moment, not just for this movement, but for the nation, so that the will of the people can perhaps finally find its way into the law.”
The expected battle over Kavanaugh’s confirmation will center in large part on Democrats’ and progressives’ concerns that having a fifth conservative justice on the high court will make it considerably more likely that Roe v. Wade — the landmark 1973 case that declared abortion to be a constitutional right — will be overturned. According to a CNN report, Senate confirmation hearings may commence as early as September. ABC News also reported that Senate Majority Leader Mitch McConnell is seeking to have the confirmation hearings before the midterms in November.
The day after Trump, who had reportedly whittled down his list of finalists to four candidates, selected Kavanaugh, Senate Democrats launched new attacks, painting the president’s choice as an extreme archconservative.
“The ramifications of this battle will last a generation or more. I’m going to fight this nomination with everything I’ve got,” said U.S. Sen. Chuck Schumer, the New York Democrat who serves as Senate minority leader.
Impeccable Credentials
“The debate about Kavanaugh will have nothing to do with his qualifications or his abilities. Anyone who tries to question those would look kind of silly. The debate is going to be about whether or not Democratic senators believe that President Trump should get another Supreme Court nominee confirmed,” said Richard Garnett, a law professor and the director of the Program on Church, State & Society at the University of Notre Dame.
Garnett told the Register that Kavanaugh was not a surprising choice, adding that he would have been on many conservative presidents’ shortlists for Supreme Court justices.
“Kavanaugh is known to be very smart,” Garnett said. “He’s known to be a good writer. He’s known to be very well-prepared and execute his craft very conscientiously.”
Kavanaugh has served on the D.C. Circuit Court since being confirmed 53-36 by the Senate in 2006. At his confirmation hearing for the D.C. appellate court, Schumer asked Kavanaugh if he considered Roe v. Wade to be “an abomination.”
“I would follow Roe v. Wade faithfully and fully,” Kavanaugh said then. “It has been reaffirmed many times.”
That quote might raise some eyebrows among pro-life circles, but legal analysts point out that Kavanaugh, as a lower court judge, was bound to follow the Supreme Court’s precedents. And the high court has reaffirmed abortion as a constitutional right, notably in Roe and in its 1992 decision in Planned Parenthood v. Casey.
“Lower courts — like the D.C. Circuit — are bound to apply the policy set by the Supreme Court. In the Supreme Court, a Justice Kavanaugh would have the power to set policy. That’s why his views on other areas of the law are so important,” said Robert Destro, a law professor and director of the Institute for Policy Research and Catholic Studies at The Catholic University of America.
“It’s a question of the latitude of a lower-court judge to rule outside the bounds prescribed by the U.S. Supreme Court,” Catherine Glenn Foster, the president and CEO of Americans United for Life, told the Register.
“I think we could quibble with his wording and perhaps say we would prefer that he would have phrased it slightly differently and said, ‘Well, the U.S. Supreme Court recognizes that there is such a right, and a lower-court judge is bound to uphold Supreme Court precedent.’”
High-Profile Decisions
Foster added that Kavanaugh, who has authored more than 300 decisions during his 12 years on the appellate bench, has “demonstrated that he is committed to the text and the original public meaning of the Constitution.”
“He has an appropriate view of the role of lower-court judges and recognizes they are limited in ability to stretch the law beyond what the Supreme Court has said,” Foster said.
A glimpse of some of Kavanaugh’s high-profile decisions provides a window into his judicial philosophy and an idea of the kind of Supreme Court justice he would be.
In 2017, Kavanaugh dissented from an appeals-court vote to allow an undocumented pregnant 17-year-old in immigration detention to seek an abortion. In that case — Garza v. Hargan — Kavanaugh said the majority decision represented “a radical extension of the Supreme Court’s abortion jurisprudence.”
In the 2015 case of Priests for Life v. U.S. Department of Health and Human Services, Kavanaugh said the Affordable Care Act’s requirement for contraceptive coverage in employee health insurance plans violated the religious freedom of religious nonprofits.
Given that he is a judicial conservative, Kavanaugh does not believe that it is a judge’s role to consult his or her own public-policy preferences when deciding cases, Garnett said.
“It would be a reasonable inference that he thinks the court made a mistake in Roe and that the court overreached when it created this right to abortion,” Garnett said. “I’m sure the Senate will ask him about that.”
Whether the Supreme Court should revisit a case it thinks was wrongly decided will most certainly be asked of Kavanaugh during his confirmation hearings.
“I feel very confident that with all other nominees we’ve seen over the last 30 years, Judge Kavanaugh is not going to answer that question at his confirmation hearings, because, frankly, it would be inappropriate for him to do so,” Garnett said.
Catholic Background
One subject that Kavanaugh was willing to talk about during his July 9 public remarks was his Catholic faith.
“The motto of my Jesuit high school was ‘Men for others.’ I have tried to live that creed,” said Kavanaugh, who graduated from Georgetown Preparatory School near Washington, D.C.
“I am part of the vibrant Catholic community in the D.C. area,” Kavanaugh also said. “The members of that community disagree about many things, but we are united in our commitment to serve.”
Kavanaugh also made special mention of Msgr. John Enzler, the president and CEO of Catholic Charities, who attended the announcement at the White House. Kavanaugh noted that he was an altar boy for “Father John” 40 years ago and that they now serve the homeless together through their work at Catholic Charities.
In a phone interview with the Register, Msgr. Enzler said he has long known Kavanaugh to be “a wonderful person who does all he can to make a difference for others.”
“He’s a man for others. It’s kind of in his DNA to try to find a way to serve others. That’s been part of his MO all his life,” Msgr. Enzler said.
Asked if he could ever have imagined that young altar server from 40 years one day sitting on the highest court in the land, Msgr. Enzler said he saw “a good kid who grew in his commitment to share his blessings with other people.”
Brian Fraga writes from Fall River, Massachusetts
