Law & the Courts

Judge Brett Kavanaugh’s Impeccable Record of Constitutional Conservatism

President George W. Bush (left) watches as Brett Kavanaugh (2nd left) is sworn in as a judge in the U.S. Court of Appeals for the District of Columbia by Supreme Court Associate Justice Anthony Kennedy (right) in a Rose Garden ceremony at the White House, June 1, 2006. Kavanaugh’s wife, Ashley, holds the bible. (Larry Downing/Reuters)
The stakes in filling the Supreme Court vacancy are high. This is no time for a gamble.

Social conservatives understand the stakes in filling the Supreme Court vacancy created by Justice Anthony Kennedy’s retirement. President Trump, who has excelled in his judicial nominations to date, has the opportunity to transform the Court for a generation to come. This is no time for a gamble. As social conservatives know from bitter experience, a judicial record is the best — really, the only — accurate predictor of a prospective justice’s philosophy on the issues that matter most to us. On the vital issues of protecting religious liberty and enforcing restrictions on abortion, no court-of-appeals judge in the nation has a stronger, more consistent record than Judge Brett Kavanaugh. On these issues, as on so many others, he has fought for his principles and stood firm against pressure. He would do the same on the Supreme Court.

Start with a case argued before the D.C. Circuit this March, a case still under submission. The Washington Metropolitan Area Transit Authority (i.e., the Metro) bans “issue-oriented advertising,” which it interprets to include religious ads. So when the Catholic Archdiocese of Washington wanted to run an ad with the words “Find the Perfect Gift” and an image of shepherds following a star in the sky during the Christmas season, Metro vetoed the ad. The archdiocese sued Metro for violating the First Amendment speech and religion clauses, as well as the Religious Freedom Restoration Act. The district court ruled for Metro, and the archdiocese appealed to the D.C. Circuit, where the oral argument pitted Paul Clement (representing the archdiocese), a solicitor general in the George W. Bush administration, against Donald Verrilli (representing the Metro), a solicitor general under Obama. Kavanaugh hammered Verrilli with what the Washington Post called “unrelenting” questioning about the Christmas-ad ban, which the judge described as “pure discrimination” and “odious to the Constitution.”

Take another case that arose this year before the D.C. Circuit, Garza v. Hargan. The American Civil Liberties Union sued the Department of Health and Human Services for declining to facilitate an immediate abortion for an unlawful-immigrant minor in federal custody. The district court ruled for the ACLU. On appeal, Judge Kavanaugh and another judge reversed, agreeing with the Trump administration that it did not have to provide an immediate abortion and ordering the district court to give the minor time to find a sponsor so that the government did not have to facilitate the abortion — precisely the relief the administration sought. When the full D.C. Circuit later vacated that decision and ordered the government to facilitate the abortion immediately, Judge Kavanaugh dissented, stating that the majority had “badly erred” in adopting a “radical extension of the Supreme Court’s abortion jurisprudence.” He again endorsed the Trump administration’s position that it did not have to facilitate an immediate abortion on demand. In his opinion, Judge Kavanaugh emphasized the government’s “permissible interests” in “favoring fetal life” and “refraining from facilitating abortion.” (The Supreme Court later vacated the full D.C. Circuit’s order as moot.)

Those recent decisions are just the latest in a long, unbroken line of consistent decisions from Judge Kavanaugh on issues of religion and abortion. During the Obama administration, he voted in Priests for Life v. HHS to invalidate the so-called accommodation to the contraceptive mandate, which required religious organizations to sign a form facilitating access to contraceptives for their employees. Judge Kavanaugh was one of few federal judges (Neil Gorsuch was another) to hold that the law imposed a “substantial burden” on the organizations’ exercise of religious liberty, and one of even fewer to conclude that the contraceptive-mandate accommodation violated the law. The Supreme Court later vindicated his position by vacating decisions that upheld the contraceptive-mandate accommodation.

To take yet another example, Judge Kavanaugh in 2010 wrote a lengthy concurrence drawing on American historical tradition and the original meaning of the Constitution to defend the invocation of God and the practice of prayer at official government ceremonies, such as the presidential inauguration and Supreme Court sittings. The Supreme Court adopted a similar approach several years later in upholding prayer before a town meeting in New York.

Judge Kavanaugh’s positions on these issues stretch back to time before he was on the bench. He is a product of Catholic elementary and high schools. As a lawyer in private practice, he chaired the Federalist Society’s Religious Liberty Practice Group and put aside his paying law-firm work to author pro bono amicus briefs strongly advocating for religious believers in two significant Supreme Court cases, Good News Club v. Milford Central School (2001) and Santa Fe Independent School District v. Doe (2000). He is a lector at his parish, and he volunteers with Catholic charities, teaches and mentors in Catholic (and other) schools, and coaches his daughters’ Catholic Youth Organization (CYO) basketball teams.

In short, Judge Kavanaugh’s record on issues of concern to social conservatives is rock solid, and it far exceeds that of any other contender. He is the right person for this pivotal time.

Some social conservatives have asked two particular questions about Judge Kavanaugh’s record in this area. First, some have wondered why he did not address whether the teenager in Garza had a right to abortion in the first place. The answer is simple: The government did not raise that issue in the case. Judge Kavanaugh fully adopted the legal argument that the Trump administration made, holding that the government is not constitutionally compelled to facilitate an immediate abortion for a teenager in immigration custody. That is a strong, bold, and correct application of current law — and it provides every reason for confidence in his jurisprudence.

Second, some have wondered why Judge Kavanaugh in his Priests for Life opinion referred to a “compelling” government interest in providing women access to contraception. Again, there is a simple answer: He was describing the compelling interest that five Supreme Court justices had recognized in Burwell v. Hobby Lobby Stores, Inc. (2014), which he was bound to apply as a lower-court judge. And after recognizing that interest, Judge Kavanaugh ruled in favor of Priests for Life, concluding that the Obamacare contraceptive-mandate accommodation violated their religious liberty — another conservative legal ruling that for social conservatives should only build confidence in his judicial philosophy.

Judge Kavanaugh has fearlessly defended his textualist and originalist philosophy.

Speaking of Obamacare, I know how disappointed social conservatives were by the Supreme Court’s unprincipled decision to uphold that law. Judge Kavanaugh dissented from a court-of-appeals decision upholding Obamacare. He called the individual mandate “unprecedented on the federal level in American history” and said that upholding it would “usher in a significant expansion of congressional authority with no obvious principled limit.” He also explained that “no court to reach the merits has accepted the Government’s Taxing clause argument” and that the taxing clause “has not traditionally authorized a legal prohibition or mandate.” Although he ultimately determined that a challenge to Obamacare had to be brought later, he left no doubt about where he stood. No other contender on President Trump’s list is on record so vigorously criticizing the law. And as another of Judge Kavanaugh’s former law clerks has explained in depth, any suggestion that his decision paved the way for the Supreme Court’s disastrous ruling is, as Justice Scalia would later put it in an Obamacare dissent, “pure applesauce.” The Supreme Court Justices who followed Judge Kavanaugh in the Obamacare case were the dissenters, Justices Scalia, Thomas, Alito, and Kennedy.

In sum, Judge Kavanaugh has a clear, consistent, and rock-solid record on the issues that matter most to social conservatives. He has repeatedly taken conservative stands and fearlessly defended his textualist and originalist philosophy. And as I can say with confidence from having worked with him closely in chambers for a year — and benefited from his mentorship for a decade — he is a good and decent man who will never waver in the face of pressure from any quarters. He is exactly what constitutional conservatives should want on the Supreme Court.

Sarah E. Pitlyk, a former law clerk to Judge Brett Kavanaugh, is special counsel for the Thomas More Society, a not-for-profit, national public-interest law firm dedicated to restoring respect in law for life, family, and religious liberty. She is based in St. Louis. The views expressed here are her own and not those of the Thomas More Society.


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