Brett Kavanaugh’s Looming Trial by Fire
EDITORIAL: This nomination to the U.S. Supreme Court comes at a time when immense issues are confronting and dividing the country.
A new era for the U.S. Supreme Court potentially began July 9, when President Trump nominated Judge Brett Kavanaugh of the U.S. Court of Appeals for the District of Columbia to be his Supreme Court nominee to replace the retiring Justice Anthony Kennedy.
“Judge Kavanaugh has impeccable credentials, unsurpassed qualifications and a proven commitment to equal justice under the law,” Trump said during the White House announcement. “He is a brilliant jurist, with a clear and effective writing style, universally regarded as one of the finest and sharpest legal minds of our time.”
His nomination comes at a time when immense issues are confronting and dividing the country. If confirmed, he will be asked to grapple in coming years with a host of pressing cases, surrounding such foundational issues as religious liberty and the defense of human life.
Once the name was made public, press releases — pro and con — began flying across the internet, launching what everyone agrees will be a brutal and vitriolic confirmation process.
The predictable reception of Kavanaugh’s nomination fell chiefly along political and ideological lines. For liberals and virtually every Democrat in Congress, Kavanaugh was condemned as an existential threat to all civil rights, especially abortion. Meanwhile, mainstream conservatives for the most part praised him as a strict constitutionalist.
One thing that both sides can agree about is that the appointment of a second Supreme Court nominee by President Trump creates the opportunity to move the high court decisively to the right, and conservatives certainly want and expect Kavanaugh to be a more conservative justice than Anthony Kennedy. That prospect fills progressives — in particular the heavily funded abortion movement — with both fear and rage.
Kavanaugh declared at the announcement of his nomination, “My judicial philosophy is straightforward: A judge must be independent and must interpret the law, not make the law. A judge must interpret statutes as written, and a judge must interpret the Constitution as written, informed by history and tradition and precedent.”
For those concerned about religious liberty and the culture of life, Kavanaugh’s judicial outlook matters, and, as it did with the nomination of Neil Gorsuch in 2017, the pro-life movement is asking whether Kavanaugh can be trusted to seek the genuine common good on the court. As he has issued nearly 300 opinions during his tenure on the D.C. Circuit Court of Appeals, his record requires close analysis.
On the front of religious liberty, Kavanaugh has a substantive record. In 2010, he rejected a challenge by the atheist agitator Michael Newdow to saying prayers at the presidential inauguration and the use of the phrase “so help me God” in the presidential oath.
“We cannot resolve this case by discounting the sense of anguish and outrage plaintiffs and some other Americans feel at listening to a government-sponsored religious prayer,” he wrote. “We likewise cannot dismiss the desire of others in America to publicly ask for God’s blessing on certain government activities and to publicly seek God’s guidance for certain government officials.”
In Priests for Life v. HHS in 2015, Kavanaugh opposed the D.C. Circuit Court of Appeals’ decision not to review the case that challenged the Affordable Care Act’s contraceptive mandate that demanded Catholic nonprofit organizations provide for abortion-inducing drugs, contraceptives and sterilization in their health care plans.
In his dissent, Kavanaugh wrote that the mandate regulations “substantially burden the religious organizations’ exercise of religion because the regulations require the organizations to take an action contrary to their sincere religious beliefs or else pay significant monetary penalties.”
In the end, his position was vindicated by the Supreme Court.
More recently, in 2017, he gave a spirited dissent in the case of Garza v. Hargan, when his court permitted a teenager who had entered the country illegally from Mexico to receive an abortion. The ruling in favor of the American Civil Liberties Union, Kavanaugh argued, was “ultimately based on a constitutional principle as novel as it is wrong: a new right for unlawful immigrant minors in U.S. government detention to obtain immediate abortion on demand.”
He added that the ruling failed to recognize the government’s “permissible interest in favoring fetal life, protecting the best interests of a minor, and refraining from facilitating abortion.”
Much more will be learned in the weeks to come, as the grueling gauntlet of the nomination process unfolds.
As a Catholic, Kavanaugh would maintain the balance of the religious composition of the court, with five Catholic justices, three Jewish justices and Neil Gorsuch, who was baptized Catholic but now attends an Episcopal church.
The new nominee spoke about his Catholic faith at the announcement ceremony, noting that he was a graduate of the prestigious Georgetown Preparatory School in North Bethesda, Maryland (from which Gorsuch graduated two years ahead of him), and describing himself as “part of the vibrant Catholic community in the D.C. area.” He added that he had been an altar boy and currently serves meals to the homeless at Catholic Charities in the nation’s capital.
Kavanaugh — and his wife and two daughters — will need the strength of their Catholic faith, even if it is attacked in the confirmation hearings and he is slandered by groups determined not merely to block his nomination, but to destroy his career.
Anti-Catholicism has emerged in the process already, as witnessed by the Daily Beast’s anti-Catholic polemic against Leonard Leo, one of the heads of the Federalist Society and a key adviser to President Trump on judicial appointments.
The article warns, “A Catholic fundamentalist who controls a network of right-wing groups funded by dark money has put three justices on the court. He’s about to get a fourth.”
This comes a year after Sen. Dianne Feinstein, D-Calif., declared of then-Catholic circuit court nominee Amy Coney Barrett — a finalist for the Supreme Court pick to replace Kennedy this year — “The [Catholic] dogma lives loudly within you.”
There was a time when Supreme Court justices were largely unknown to the average American and the nomination process conducted with both courtesy and respect for tradition. Today, federal judges — Supreme Court members above all — are celebrity jurists in a celebrity-driven and hyperpoliticized culture.
Brett Kavanaugh now enters a political and media arena where courtesy and respect seem no longer to apply and where a devout Catholic who coaches CYO basketball at his parish and feeds the poor is subject to a series of religious and political litmus tests and deemed unfit to serve on the high court precisely because of his respect for the Constitution and his Catholic faith.