Kavanaugh feels for those he rules against
Conservative nominee for Supreme Court shows openness in rulings
WASHINGTON – Supreme Court nominee Brett Kavanaugh sought to strike down the District of Columbia’s gun registration requirement and ban on semi-automatic rifles in 2011. But he said, “I greatly respect the motivation” behind the laws.
The following year, he opposed a ruling that allowed the Environmental Protection Agency to regulate greenhouse gases, though he acknowledged that “EPA issued these regulations to help address global warming, a policy issue of major long-term significance to the United States.”
Later that year, Kavanaugh upheld South Carolina’s photo identification law because it allowed for exceptions. “In some states ... minorities disproportionately lack photo IDs,” he wrote for a three-judge panel. “That racial gap has exacerbated concerns about voter ID laws.”
And in 2015, he sided in part with a religious nonprofit seeking to avoid a federal mandate that it provide insur- ance coverage for birth control. At the same time, he said, “the government has a compelling interest in facilitating access to contraception.”
From gun control to birth control, environmental protection to voting rights, President Donald Trump’s nominee for the Supreme Court has been a reliable conservative vote on its steppingstone, the U.S. Court of Appeals for the District of Columbia Circuit.
At the same time, Kavanaugh has displayed a degree of understanding that often borders on empathy for the policy goals of those he rules against.
“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,” he wrote in the Washington, D.C., gun control case. “My view on how to analyze the constitutional question here under the relevant Supreme Court precedents is not to say that I think certain gun registration laws or laws regulating semi-automatic guns are necessarily a bad idea as a matter of policy.”
That ability to see issues from other points of view has given some liberals hope that if he wins confirmation, Kavanaugh could be an honest broker on the court and not a knee-jerk addition to the conservative majority.
Akhil Reed Amar, a liberal constitutional scholar who taught Kavanaugh at Yale Law School, says the 53-year-old judge’s “combination of smarts, constitutional knowledge and openness make him clearly superior.”
“He goes out of his way to make sure he’s hearing both sides,” Amar says.
To be sure, most of Kavanaugh’s roughly 300 opinions, concurrences and dissents came out as conservatives hoped. That’s why he was nominated to succeed retiring Justice Anthony Kennedy, whose own brand of conservatism veered left on key social issues such as abortion and gay rights.
But unlike the late Justice Antonin Scalia, he often seeks to appease rather than aggravate the other side.
Kavanaugh’s dissent last year in a case involving an undocumented teenager in federal custody who wanted an abortion is a case in point. He could have joined Judge Karen Henderson, who argued that the 17-year-old lacked any right to an abortion because of the “fundamental difference between citizenship and illegal presence in our country.”
Instead, he merely argued that more time should have been allowed for a sponsor to come forward, so that the girl could get an abortion without government involvement.
“He goes out of his way to make sure he’s hearing both sides.” Akhil Reed Amar Liberal constitutional scholar who taught Brett Kavanaugh at Yale Law School