The questions Brett Kavanaugh needs to answer (and probably won't)
Jul 10, 2018 | 2:55 PM
Trump nominates Judge Brett Kavanaugh to Supreme Court, aiming for conservative shift.
Judge Brett Kavanaugh, President Donald Trump’s nominee to replace Justice Anthony Kennedy, clearly has the requisite experience and stature to serve on the Supreme Court. He has an extensive record in public service, dating back to the George H.W. Bush administration, and he has written hundreds of opinions, law review articles and other materials that will need to be examined to determine his suitability for a lifetime appointment. This is not something that can be rushed.
The part of the process that should be most crucial, but judging from recent experience is likely to be anything but, is the public questioning of Mr. Kavanaugh by the senators who have the constitutional duty to give their advice and (if warranted) consent to the nominee. This should be an opportunity for a deep and detailed probing of his views on the Constitution, the law and the role of the judiciary. But since the failed nomination of Robert Bork by President Ronald Reagan three decades ago, prospective justices have steadily said less and less in their hearings, reaching a nadir with President Trump’s other high court pick, Justice Neil Gorsuch, who revealed next to nothing about his judicial philosophy.
That was a dangerous trend and is particularly problematic in Judge Kavanaugh’s case. We say that not because he is a conservative — that is to be expected of a Republican president’s nominees — but because his record reveals contradictory impulses that have troubled people at both ends of the political spectrum. We understand that we can’t possibly expect concrete answers to every hypothetical conflict that could one day land before the high court, but we should at least be able to hear explanations of his own record and his views on the Constitution and Supreme Court precedent. Here are a few questions Judge Kavanaugh needs to answer.
Roe v. Wade
It’s doubtful that we’ll get a straight answer on whether Judge Kavanaugh believes Roe v. Wade, the landmark case guaranteeing women the right to abortion on privacy grounds, was correctly decided. The most we can hope for is for him to say whether he believes it is settled law. While that may be enough of a fig leaf for nominally pro-abortion rights GOP Sens. Susan Collins and Lisa Murkowski, it’s not nearly good enough for the public. A direct challenge to Roe isn’t on the immediate horizon — some state would need to outlaw abortion altogether for such a case to come before the Supreme Court. Rather, what we’ll almost certainly see are new restrictions from state legislatures that don’t ostensibly outlaw abortion but do in effect — whether it’s something like an Iowa law (now on hold pending a lawsuit) banning abortions after a fetal heartbeat can be detected or Texas laws imposing burdensome regulations on abortion providers that have made the procedure difficult to obtain.
In Planned Parenthood v. Casey, the Supreme Court’s 1992 affirmation of Roe, the majority held that states cannot place an “undue burden” on women’s right to an abortion. The key question is just what Judge Kavanaugh considers an “undue burden.” What evidence we have suggests his standard for that is pretty high. In a 2017 case, he argued that the Trump administration should be allowed to prevent an undocumented minor from traveling to a clinic to get an abortion but that she could have two weeks to seek a sponsor who would be willing to take her in and provide that opportunity. Finding a sponsor in such a case can take months, which would have put her well past Texas’ 20-week deadline for women to get an abortion in most circumstances. The full D.C. Circuit overruled Mr. Kavanaugh, but he wrote a dissent offering an expansive view of the government’s interest in intervening in an individual woman’s decision. If he didn’t consider the Trump administration’s actions in that case to be an “undue burden,” what would one be?
So far, at least four federal appeals courts have held that bans on assault weapons are constitutional, and as recently as last fall, the U.S. Supreme Court declined to hear an appeal of a case upholding Maryland’s right to ban the sale of those weapons. But Judge Kavanaugh is on record viewing the law differently. In 2011, he dissented from a decision upholding Washington, D.C.’s assault weapons ban, arguing that it violated the terms the Supreme Court had laid out three years earlier in its remarkable Heller decision, which had itself overturned the longstanding reading of the Second Amendment as providing a collective right, not an individual one. (The National Rifle Association, not surprisingly, was quick to praise his nomination to the Supreme Court.) Judge Kavanaugh wrote that he saw no difference between a semi-automatic pistol and a semi-automatic assault rifle and concluded that the latter is in common circulation and use for self-defense, hunting and other lawful purposes and thus cannot be banned under the terms of Heller. What, then, are the practical limits he would recognize on the Second Amendment?
Investigating the president
As a young attorney, Mr. Kavanaugh worked on Independent Counsel Kenneth Starr’s Whitewater probe, and at the time, he appeared to have no qualms whatsoever about aggressively investigating anything that arose from it, ranging from Vincent Foster’s suicide to President Bill Clinton’s affair with White House intern Monica Lewinsky. He reportedly pushed for particularly aggressive questioning of the president about the intimate details of his relationship with Ms. Lewinsky, and he co-authored the Starr report. A decade later, though, he wrote a law review article decrying the notion of civil suits against and criminal investigations of a sitting president, saying they are inevitably politicized and cripple the government. That obviously has incredible salience, given the Robert Mueller-led investigation into whether the Trump campaign conspired with the Russian government to influence the 2016 election. The prospect that Mr. Mueller might issue a subpoena to President Trump is growing increasingly strong as negotiations over the terms for such an interview show no signs of progress. With no clear precedent on whether a subpoena of a president is valid, such a question would inevitably be decided by the Supreme Court. Has Mr. Kavanaugh prejudged that issue?
One of the most closely watched cases of the recently concluded Supreme Court term centered on the balance between protecting LGBTQ rights and individuals’ religious liberty. The ultimate decision in Masterpiece Cakeshop v. Colorado didn’t fully satisfy either side, as it didn’t squarely address the central question of whether a baker could legally refuse to make a wedding cake for a gay couple, and similar challenges of other sorts are working their way through the courts. Mr. Kavanaugh’s record on the interplay between religious liberty and other rights isn’t entirely clear. He has written that the Obama administration’s workaround to the Affordable Care Act’s contraceptive coverage mandate for religious organizations opposed to artificial birth control — requiring them to submit a form asserting their objections — was itself an undue burden on their free exercise of religion. But he has also raised concerns among some in the religious right with opinions recognizing the government’s “compelling interest” in contraceptive coverage and recognizing the right of an “offended observer” to sue over the use of the phrase “so help me God” in the presidential oath. What is Judge Kavanaugh’s view on the limits of religious liberty, particularly in cases when it is balanced against others’ rights to be free from discrimination?
Separation of powers
In some instances, Mr. Kavanaugh has expressed a breathtakingly vast view of presidential power — for example arguing that even if the Supreme Court found the Affordable Care Act to be constitutional, a president who disagreed could simply choose not to enforce it. He also objected strenuously to the independent nature of the Consumer Financial Protection Bureau, arguing that its director was the most powerful person in government other than the president. When it comes to safeguarding the public from pollution, though, he has ruled in favor of industry and against the Environmental Protection Agency, arguing that it exceeded its authority in its regulation of greenhouse gases. Does Judge Kavanaugh inherently object to Congress’ decisions to cede regulatory authority to the executive branch, or just when it suits his objectives?