There’s nothing like a Supreme Court vacancy to muster out the conservative circular firing squad. As Ed Whelan noted yesterday, Ben Shapiro had some ill-advised criticisms of the odds-on front-runner to replace Justice Kennedy, the D.C. Circuit’s Brett Kavanaugh. Ed does his usual thorough job of taking down Shapiro’s criticism of Kavanaugh, and I’ll not repeat it here. Suffice it to say that more than a decade on the D.C. Circuit, often somewhat facetiously called the “second highest court in the land,” has yielded sufficient evidence that Brett Kavanaugh deserves his place on any Supreme Court short list. He has an impressive record of fidelity to the Constitution, with particularly impressive opinions in the realm of separation of powers (his opinion invalidating the vesting of unchecked power in a single director of the Consumer Financial Protection Bureau is a tour de force), the Second Amendment, and religious liberties.
The latest attack on Kavanaugh comes from the Judicial Action Group, a nonprofit group run by Roy Moore lawyer and campaign spokesman Phillip Jauregui. Judicial Action Group ranks Kavanaugh among the “worst prospects” among the purported short-listers, apparently concluding that Kavanaugh is insufficiently skeptical of the constitutional right to abortion. But much like the result in the Alabama Senate race, this argument doesn’t — and can’t — bring the goods.
Bizarrely, the group focuses on Kavanaugh’s opinions in Garza v. Hargan, a heavily publicized case involving the question of whether an illegal-immigrant teenager detained at the border before entering the U.S. had a constitutional right to require the federal government to assist her in getting an abortion. In both a panel decision rejecting the ACLU’s argument and a subsequent en banc dissent, Kavanaugh (joined by Judge Karen LeCraft Henderson in both opinions and by Judge Thomas B. Griffith in the en banc dissent) endorsed the legal position of Donald Trump’s Justice Department. He concluded that requiring the federal government to assist the teenager in getting an abortion would fail to recognize the federal government’s “permissible interest in favoring fetal life, protecting the best interests of a minor, and refraining from facilitating abortion.” He emphatically rejected the creation (by the majority of the D.C. Circuit, sitting en banc) of a “new right for unlawful immigrant minors in U.S. government detention to obtain immediate abortion on demand.” He scoffed at the result in the case, which forced the feds to turn over the child in the wee hours of the morning to permit her to abort her unborn child, calling it “inconsistent with 40 years of Supreme Court precedent” and a “radical extension of the Supreme Court’s jurisprudence.”
That apparently is not good enough for the Judicial Action Group, which contends he made “unnecessary concessions” in the case. They criticize him for not joining a separate opinion by Judge Henderson, who would have concluded that there was no fundamental constitutional right to abortion for an immigrant picked up at the border and detained in U.S. custody. But there simply was no reason to join that position in order to grant complete relief in the case. Indeed, the Trump administration repeatedly refused to make that argument itself. The case was litigated in a very compressed emergency posture, and DOJ did not clear its lawyers to take that aggressive position.
Kavanaugh assumed, as the Trump administration had done in its briefs and oral argument, that the very abortion-protective Supreme Court precedent applied to the case, yet still found that there was no violation of that right in the circumstances at issue. Kavanaugh emphasized what many liberal jurists seek to ignore in the Supreme Court’s abortion cases — that the government always has a fundamental interest in protecting the unborn and that there was nothing in the high court’s “undue burden” standard that required the government to participate in the abortion in this case. He placed this dispute in the same category as parental consent and a number of other abortion restrictions that the Court has upheld, even applying Roe and its progeny.
He placed this dispute in the same category as parental consent and a number of other abortion restrictions that the Court has upheld, even applying Roe and its progeny.
JAG has an outright duplicitous interpretation of the oral-argument recording in that case, suggesting that Kavanaugh, with Judge Patricia Millett (who ultimately supported the ACLU in the case), “pressured” the government lawyer to concede that she had waived the argument that there was no constitutional right to abortion for the illegal-alien minor. It is always difficult to read between the lines of an oral argument. But a fairer reading of what happened there was that Kavanaugh was trying to nudge the government away from Judge Millett’s waiver position, suggesting that the government might be able to raise the issue later if it had a change of heart. That said, when the decision was issued, there simply was no reason for the court to reach this novel legal issue when the Trump administration had not argued for it.
JAG seeks to use this weak gruel to suggest that “Kavanaugh is not the best available Supreme Court prospect” for conservatives concerned about social issues in the Court. To them, Judge Henderson’s views were “the most principled writing on the issue of life.” That JAG may get most excited about Judge Henderson’s approach to the case does not make Kavanaugh any less protective of the unborn child at issue. No less than Henderson (who joined his opinion), he concluded that the federal government had no obligation to participate in the abortion, fully supporting the legal position of Donald Trump’s administration.
The truth is we never know with 100 percent certainty how a judge will rule when elevated to the Supreme Court. But if you are reading the tea leaves from the Garza decision, there is no reason to conclude that Kavanaugh would support Roe and Casey when presented with the question as a Supreme Court justice. Judicial Action Group’s demand for absolute purity here would disqualify an outstanding candidate who has done nothing to suggest infidelity to the Constitution as written, and everything to suggest fidelity.