High court pick’s record offers hints of how he’ll vote
WASHINGTON – Republican presidents have nominated 13 of the last 17 justices to serve on the Supreme Court without gaining a reliable majority. Conservatives hope President Trump’s nomination of Brett Kavanaugh will change that.
But a comparison of Kavanaugh’s record on the U.S. Court of Appeals for the District of Columbia Circuit to Justice Anthony Kennedy’s record on the Supreme Court leaves the degree of change in doubt.
On issues ranging from gun control and environmental regulation to corporate liability and executive power, the two men have not been far apart. When Kavanaugh’s opinions and dissents have been reviewed at the high court, Kennedy largely has agreed with his former law clerk.
It’s on the major social issues – abortion, affirmative action and gay rights, to name a few – where conservatives hope Kavanaugh will reverse Kennedy’s inclination to side with the Supreme Court’s four liberals. Had Kavanaugh been on the court in 2016, for instance, his vote might have upheld abortion restrictions and struck down racial preferences in two cases decided 5-4 the other way.
Abortion may be the best example of a likely change. Last year, Kavanaugh dissented from his court’s ruling that allowed an undocumented teenager in federal custody to get an abortion. He cited Supreme Court precedents, under which he said “the government has permissible interests in favoring fetal life, protecting the best interests of a minor, and refraining from facilitating abortion.”
During his confirmation hearing in 2006, Kavanaugh said he would “follow Roe v. Wade faithfully and fully . ... It’s been reaffirmed many times.” But he refused to offer his personal opinion. Kennedy, on the other hand, has sided with liberals against states seeking to impose what he considered harsh restrictions on abortion rights.
In the area of contraception, however, the two jurists have not been far apart.
In 2014, Kennedy agreed with the Supreme Court’s conservatives that the government cannot compel corporations with religious objections to provide free birth control to their employees.
The following year, Kavanaugh cited that case in a dissent from his court’s refusal to rehear a challenge to the government mandate from a religious nonprofit.
But neither Kennedy nor Kavanaugh was adamant in his view that religion trumped regulation. Kavanaugh, in fact, drew complaints from conservatives by claiming that “the government has a compelling interest in facilitating access to contraception for the employees of these religious organizations.”
On the Second Amendment, Kennedy sided twice with the court’s conservatives in 5-4 decisions that invalidated city bans on handguns. It’s not clear how much further he would have gone, however, which may be why the high court has yet to consider whether the right to possess firearms extends outside the home.
That’s something Kavanaugh resolved for himself in a 2011 case when he dissented from an appeals court ruling that upheld a District of Columbia ban on semi-automatic rifles.
“As one who was born here, grew up in this community in the late 1960s, 1970s, and 1980s, and has lived and worked in this area almost all of his life, I am acutely aware of the gun, drug, and gang violence that has plagued all of us,” Kavanaugh wrote in a 52-page dissent.
But he quoted Kennedy from an earlier case, in which the Supreme Court allowed flag burning: “The hard fact is that sometimes we must make decisions we do not like. We make them because they are right, right in the sense that the law and the Constitution, as we see them, compel the result.”
In the area of environmental regulation, Kavanaugh’s opinions have been both affirmed and struck down by Kennedy’s Supreme Court. In one major case, the justices agreed with his dissent that the government must take costs into account when deciding whether to regulate power plants. Kennedy sided with the 5-4 majority.