On Monday, President Donald Trump, playing host for the most politically divided country turned reality TV show imaginable, announced that D.C. Circuit Court Judge Brett Kavanaugh would replace Justice Anthony Kennedy on the United States Supreme Court.
For over a week, the government teased their public audience with a short list of other controversial names such as Judge Amy Coney Barrett, Judge Raymond Kethledge, and Judge Thomas Hardiman, any of whom, if confirmed could change the face of the Supreme Court for a generation.
The concern from the left has focused on contentious issues such as Roe V. Wade, a key decision that guarantees abortion rights to all U.S. citizens on the federal level. The precedent could be overturned if conservatives hold a firm majority in the country’s highest court, particularly if they squeeze justices of religious bias past the nomination process.
Despite being a late Reagan appointee, the court record of Justice Kennedy presented the man as America’s “decider,” proving himself as a genuine swing-vote untethered to theocratic motivations from the Catholic faith. Would a post-Kennedy SCOTUS, constructed under the evangelical-pandering of President Trump, meet this bar of secularist integrity?
It’s a fair question for those who believe in the separation of church and state.
To the likes of large conservative outlets in National Review, Fox News, the Daily Wire, InfoWars, even just mainstream outlets like The Hill, however, this question regarding how someone’s religious and judicial views intersect is considered a form of “religious bigotry” against Christians. The outlets often highlighted a scandal surrounding Sen. Dianne Feinstein (D-CA), a senior member of the Senate Judiciary Committee, who notoriously confronted Barrett during her 2017 confirmation hearing.
“Why is it that so many of us on this side have this very uncomfortable feeling that - you know, dogma and law are two different things?” Feinstein asked of Barrett, an admitted Christian devotee. “I think in your case, professor, when you read your speeches, the conclusion one draws is that the dogma lives loudly within you. And that’s of concern when you come to big issues that large numbers of people have fought for, for years in this country.”
The senator was addressing the 1998 Marquette Law Review article Barrett co-authored with John Garvey, her former law school colleague at Indiana’s University of Notre Dame and now president of the Catholic University of America, concluding Catholic judges who opposed the death penalty could always recuse themselves under federal law.
This, in effect, would mean they put religious beliefs above their occupation.
Years later, Barrett was revealed to be a member of People of Praise, a known gender-segregated Catholic cult, which upheld literal patriarchal notions that “handmaidens” — their name for obedient Catholic women — should submit to male authority in most facets of life where they’re not leader. It’s easy to see why someone of Catholicism’s fringe on the court strikes concern.
With all this in mind, Feinstein simply wondered whether the Republican’s SCOTUS picks could perform their jobs as unbiased arbiters of the law, whether they can only pick and choose which cases to oversee, or whether their religious ties necessarily commit them to theocratic principles.
“If you’re asking whether I’m a faithful Catholic,” Coney shot back, “ I am, although I would stress that my own personal Church affiliation or my religious belief would not bear on the discharge of my duties as a judge.”
But can the same be said of Kavanaugh?
In the past week, the judge has been hailed as a “warrior for religious liberty” with endorsements from the religious right in National Review, Ann Coulter, Laura Ingraham, Leonard Leo, Eugene Scalia, Matt Schlapp, J. D. Vance, and Ed Whelan. The current Senate Minority Leader Chuck Schumer declared the replacement to Justice Kennedy “has an obligation — a serious and solemn obligation — to share their personal views” on issues Kavanaugh has avoided, particularly his recent non-opinion on Roe V. Wade.
The Atlantic reports Democrats are set to oppose Trump’s latest nominee for being the former chair of the Federalist Society’s “Religious Liberties Practice Group,” the conservative non-profit organization where, on a pro bono basis, Kavanaugh submitted several pro-religious liberty amicus briefs to the Supreme Court, legal documents which essentially play the role of lobbyist in offering justices arguments and data outside traditional court hearings to sway their decisions.
Since Justice Kennedy was the swing-vote on several abortion rights cases, progressives wonder if Kavanaugh, one of Kennedy’s former law clerks, would be influenced by religious lobbying bias. His most controversial moment came in an October 2017 when Judge Kavanaugh, serving on a D.C. appeals court, dissented from the majority in saying undocumented immigrant teens, while locked away in detention centers, are not entitled to abortions regardless of the circumstances of the pregnancy (i.e. whether it’s from consensual sex or rape).
Detailed in a report from The Washington Post, Kavanaugh wrote the Supreme Court has held that “the government has permissible interests in favoring fetal life, protecting the best interests of a minor, and refraining from facilitating abortion.” He continued to say that the high court has “held that the government may further those interests so long as it does not impose an undue burden on a woman seeking an abortion.”
He said the majority opinion was “based on a constitutional principle as novel as it is wrong: a new right for unlawful immigrant minors in US government detention to obtain immediate abortion on demand.” Regarding citizens, however, he said: “all parties on this case recognize Roe v. Wade and Planned Parenthood v. Casey as precedents we must follow.”
Trump has stated his interest in overturning this precedent, evidenced by his 2017 installment of lifelong pro-life advocate Justice Neil Gorsuch. But Kavanaugh also has pro-elitist tendencies that fall squarely in line with the Washington swamp.
Keep in mind, Kennedy was no fighter against Citizens United v. FEC, the 2010 ruling which definitively secured corporate money within American elections, as well as presumably the influence that comes with that money.
This kind of corruption was condemned by candidate Trump but isn’t the case for President Trump. Since Kennedy, in fact, wrote the opinion for Citizens United, it’s likely his replacement, known for strict opposition to the Consumer Financial Protection Bureau (CFPB), will continue the political swamp. As both CNN and New York Magazine rightly point out, there’s always one person we should wonder who benefits from these political decisions: President Donald Trump.
Reporter Jim Acosta writes: “Trump SCOTUS team has looked at Kavanaugh’s past comments on indicting a sitting president, we’ve confirmed. In 2009, Kavanaugh wrote: “The indictment and trial of a sitting President, moreover, would cripple the federal government…”
This opinion, of course, only applies to Republicans.
Kavanaugh was among the independent watchdogs for Kenneth Starr’s investigation of Democratic President Bill Clinton and his predatory relationship with Monica Lewinsky. According to records cited by Ken Gormley, Duquesne University law professor and Watergate biography, Kavanaugh wrote the council shouldn’t go easy on the president since Clinton “has disgraced his Office, the legal system, and the American people by having sex with a 22-year-old intern and turning her life into shambles… callous and disgusting behavior that has somehow gotten lost in the shuffle. He has committed perjury. … He has tried to disgrace … this Office with a sustained propaganda campaign that would make Nixon blush.”
Kavanaugh once argued in favor of a broad definition for what constitutes presidential obstruction of justice and wrote that Congress should pass a law making the president exempt from criminal prosecution and general investigations while in office:
“If the President does something dastardly, the impeachment process is available. No single prosecutor, judge, or jury should be able to accomplish what the Constitution assigns to the Congress. Moreover, an impeached and removed President is still subject to criminal prosecution afterwards.”
Pick a standard and stick with it, Mr. Kavanaugh.