By Dean R. Broyles, Esq.
Washington, D.C.—President Donald Trump promised during his campaign to nominate federal judges who will carefully adhere to the United States’ Constitution and the rule of law. Exit polling confirmed that this commitment was one of the primary reasons he received so many votes, including those from evangelicals. Following closely on the heels of his successful nomination of Justice Neil Gorsuch to fill Justice Antonin Scalia’s seat, the president has nominated Brett Kavanagh to fill retiring Justice Anthony Kennedy’s chair. Kavanaugh’s nomination is particularly contentious, primarily because he is positioned to cement the high court’s 5-4 conservative majority, perhaps for generations to come.
Who is Brett Kavanaugh? His former law clerks describe him as humble, kind, civil, generous, fair, brilliant man, possessing a good sense of humor, sound judgment and sterling integrity. He is a committed family man and is collegial with his fellow jurists. He is open-minded, hiring a diverse staff and listening to opposing ideas and arguments. He has hired more female clerks than most Supreme Court justices.
Judge Brett Kavanaugh is a practicing Catholic and Yale Law School graduate. His career has been diverse and distinguished. He served as a law clerk for Justice Anthony Kennedy, worked for Ken Starr when he was Independent Counsel investigating the Clintons, was partner at the prestigious D.C. law firm Kirkland and Ellis, served in the G.W. Bush White House and is currently serving as a justice on the U.S. Court of Appeals for the D.C. Circuit (2006 Senate confirmation by a 57-36 vote).
What is his judicial philosophy? Judge Kavanaugh has consistently exhibited a profound respect for the U.S. Constitution as the supreme law of the land and as a safeguard for individual liberties. By all accounts he is a committed textualist who seeks to be faithful to the Constitution’s words or a statute’s language—seeking to be faithful to the original meaning. As Kavanaugh stated in a book review published in the Harvard Law Review, “The text of the law is the law,” a view which he has reiterated in many of his opinions. He seeks to follow the text, mindful of history, tradition, and precedent.
Brett Kavanaugh is committed to the Constitution’s separation of powers—where it is Congress that legislates, the president who executes, and the federal judiciary that merely applies the law in specific cases. He views the role of federal judges as limited—to apply the law, not make the law. This perspective would restrict the court from the progressive temptation to shape or create public policy—to acting legislatively by doing what it believes is best. Thus, he does not believe that federal judges should be making policy-laden judgments, seeking to solve every problem of society in the courtroom. Such judgments are for the legislatures and for the people to make. Pursuant to the conservative perspective, such activist impulses have resulted in the invalid fabrication of specious “constitutional rights” not found in the text, such as abortion and same-sex marriage.
At the same time, Kavanaugh is committed to robustly enforcing Constitutional protections for individual civil liberties, as embodied in the text of the Bill of Rights. On the bench, he has demonstrated a consistent commitment to protecting rights of conscience, including religious freedom and the freedom of speech.
Following on the heels of Justice Gorsuch’s confirmation to the U.S. Supreme Court, conservative evangelicals view Kavanaugh’s nomination as another judicial promise kept by President Trump. The left is, however, understandably quite unhinged. This is because Kavanaugh presents an existential threat to their activist secular-progressive utopian worldview. This is because they largely view the Constitution as a living breathing document which they are free to judicially mold, shape, transform and effectively amend via activist judges according to their worldview.
The far left in recent weeks have issued a slew of near-apocalyptic warnings of doom: opining that the Kavanaugh nomination presents a democratic “emergency” and that “people will die” if he is confirmed. NARAL Pro-Choice America President Ilyse Hogue said, “Kavanaugh would use the Court as a tool to doom all women to that fate [of a pre-Roe America].” Senator Chuck Schumer reacted to his nomination by declaring, “I will oppose Judge Kavanaugh’s nomination with everything I have.” Among other things, liberals specifically fear that Roe v. Wade (1973, creating a “constitutional” right to abortion) and Obergefell (2015, creating a “constitutional” right to same-sex marriage) will be overturned if he is given a seat at the table of the nine.
Here is a sampling of Judge Kavanaugh’s views in a few key areas:
Religious Freedom: Judge Kavanaugh will safeguard the First Amendment’s protections for religious liberty. In 2015 in Priests for Life v. Burwell, he dissented from the majority opinion’s holding that the Obamacare contraception mandate could be applied to religious organizations. Kavanaugh wrote that he would have invalidated the mandate as an unconstitutional burden on the sincerely-held religious convictions of religious organizations. In 2010 in Newdow v. Roberts, he ruled against an atheist’s Establishment Clause challenge to the “so help me God” pledge taken by our presidents during inaugurations.
Pro-life: In 2017, in Garza v. Hargan, Kavanaugh voted twice in favor of the Trump administration’s legal argument that an illegal immigrant minor in U.S. custody does not have a right to an immediate government-facilitated abortion on demand. In the initial panel decision, Kavanaugh wrote for the majority, reversing the district court ruling in favor of the illegal immigrant minor. When the full D.C. Circuit reviewed the case and ruled in favor of the illegal immigrant, Kavanaugh dissented, stating that the court had “badly erred” in adopting a “radical extension of the Supreme Court’s abortion jurisprudence” and inventing “a new right for unlawful immigrant minors in U.S. Government detention to obtain immediate abortion on demand.”
Second Amendment: In terms of the Second Amendment, Kavanaugh wrote a dissenting opinion in Heller v. District of Columbia (2011)—a follow-on case to the Supreme Court’s landmark ruling acknowledging the Second Amendment’s protection of an individual’s right to keep and bear arms. Kavanaugh would have held D.C.’s ban on the possession of semi-automatic rifles unconstitutional, stating that “Heller and McDonald leave little doubt that courts are to assess gun bans and regulations based on text, history, and tradition, not by a balancing test such as strict or intermediate scrutiny.”
As a constitutional attorney who has dedicated my career to advocating for religious liberty, the protection of life, and the freedom of speech, I thank Donald Trump for his excellent choice and urge the Senate to confirm Judge Brett Kavanaugh as soon as possible to replace Justice Anthony Kennedy. Although Senator Chuck Schumer and other Senate Democrats have already announced their intention to block the Kavanaugh nomination or delay his confirmation hearings, they will have a hard case to make given his impressive education and career, sterling reputation, fidelity to the Constitution, commitment to civil liberties, and respect for the rule of law.
Broyles is a constitutional attorney serving as the President of The National Center For Law & Policy (NCLP), an organization fighting to promote and defend religious freedom.