Court nominee’s conservative heroes.

WASHINGTON >> When Judge Brett Kavanaugh was nominated to the Supreme Court last week, he said he was “deeply honored” to have the chance to replace his old boss and the man he has called a mentor, Justice Anthony Kennedy.

But when Kavanaugh was asked in September to give a Constitution Day speech, he chose to celebrate his “first judicial hero,” the late Chief Justice William Rehnquist, noting Rehnquist’s dissent in Roe v. Wade and his rejection of the idea of a “wall of separation between church and state.”

Rehnquist was “not successful in convincing a majority of the justices in the context of abortion,” Kavanaugh told the American Enterprise Institute. But he said the man who served from 1972 to 2005, a conservative who pushed the court to the right, was key in “limiting the court’s role in the realm of social policy and helping to ensure that the court operates more as a court of law and less as an institution of social policy.”

Liberal groups, abortion rights activists and abortion foes have seized on the speech, as well as on Kavanaugh’s ruling involving an undocumented teenage immigrant seeking an abortion while in federal custody. Abortion will be a major topic at what are sure to be contentious confirmation hearings for the 53-year-old judge on the U.S. Court of Appeals for the D.C. Circuit.

But Kavanaugh’s speech, and other writings and talks he has given, underscore how different he is from Kennedy. President Donald Trump has now nominated two former Kennedy clerks to the Supreme Court, and neither are in the mold of the retiring 81-year-old justice.

Kavanaugh and Justice Neil Gorsuch subscribe to an originalist interpretation of the Constitution associated with Justice Clarence Thomas and the late Justice Antonin Scalia, and clearly not with Kennedy.

It would be almost impossible to select a justice in the mold of Kennedy. His unique views provoked equally distributed frustrations: disappointing conservatives by authoring Obergefell v. Hodges, which established a constitutional right for same-sex couples to marry, and outraging liberals with Citizens United v. FEC, which authorized unlimited campaign spending for businesses.

In his speeches and writings, Kavanaugh is often noncommittal, describing in detail how different justices on the Supreme Court approach cases rather than offering what he thinks would be the best way.

But it is clear he would look to the approach employed by Scalia and Rehnquist. Kavanaugh thinks the Constitution affords the executive branch broad powers. At the same time, he would be far less likely than other judges to declare a law ambiguous and thus defer to an administration’s agency interpretations of regulations and implementation.

“Under the guise of ambiguity, agencies can stretch the meaning of statutes enacted by Congress to accommodate their preferred policy outcome,” he said in a tribute to Scalia at the University of Notre Dame.

Kavanaugh has spoken approvingly of the metaphor Chief Justice John Roberts used at his confirmation hearings of the judge as umpire. But there are no objective rules, he said, which frees some judges to impose their own views.

“It’s sometimes as if you were asked to umpire a baseball game, and you asked the commissioner of baseball whether the bottom of the strike zone was at the knees or at the hips, and you were told that it was up to you,” Kavanaugh said.

He also acknowledged it was a difficult question as to when the Supreme Court should honor a precedent as settled law, or when it becomes important to overrule a wrongly decided case. “I wish I had the perfect answer,” he told one audience.

Kavanaugh was more forthcoming in the AEI speech, although he did not say explicitly that Rehnquist had been right to cast one of only two dissenting votes in the court’s 7-2 ruling that recognized a constitutional right to abortion.

But he did speak approvingly of Rehnquist’s reasoning. Because there is no stated right to abortion in the Constitution, Rehnquist said new “unenumerated” rights should be recognized only if they were “rooted in the traditions and conscience of our people.” Abortion was not, he said. The court considered overruling the decision in the 1992 case of Planned Parenthood v. Casey. Kennedy was on the court by then, and he was in the majority of the 5-4 vote to preserve abortion rights. Rehnquist again dissented.