President Donald Trump is said to be down to his final three potential picks to replace pro-abortion Supreme Court Justice Anthony Kennedy. Much of the pro-life focus has been on Judge Amy Barrett and leading pro-life advocates strongly support her as a potential nominee.
But there is another potential nominee who is a reported finalist for the position who has very strong pro-life Bona fides and who one leading pro-life attorney says would be an excellent choice for the Supreme Court. That potential nominee is Judge Brett Kavanaugh, who sits on the DC Circuit Court. That is the main federal appeals court — often considered a stepping stone to the Supreme Court as it hears some of the most prominent cases, including ones filed against federal legislation like Obamacare.
Kavanaugh worked as associate counsel to pro-life President George W. Bush and he came out of the era of Reagan judicial appointees. His rulings have been said to be more like Scalia than Kennedy, however.
Sarah Pitlyk, a former law clerk to Judge Kavanaugh and special counsel for the Thomas More Society, which is a leading pro-life legal group, says Kavanaugh has an excellent record and perhaps the best record of any of the finalists president Trump is considering. As she writes:
On the vital issues of protecting religious liberty and enforcing restrictions on abortion, no court-of-appeals judge in the nation has a stronger, more consistent record than Judge Brett Kavanaugh. On these issues, as on so many others, he has fought for his principles and stood firm against pressure. He would do the same on the Supreme Court.
The pro-life attorney is not the one Kavanaugh fan. As Newsmax reports, Ed Meese is a huge supporter.
Ed Meese, President Reagan’s Attorney General and one of his closest associates, has known Kavanaugh for decades and confirmed he has been a solid Reaganite as a judge.
“I know Brett Kavanaugh reasonably well and think highly of him,” Meese told Newsmax.
“He is a very able guy, an originalist who is faithful to the Constitution and believes in it.”
So where does Kavanaugh come down on pro-life issues that affect the yard before his court? In her profile, Pitlyk mentioned three cases where Judge Kavanaugh came down on the pro-life side:
Take another case that arose this year before the D.C. Circuit, Garza v. Hargan. The American Civil Liberties Union sued the Department of Health and Human Services for declining to facilitate an immediate abortion for an unlawful-immigrant minor in federal custody. The district court ruled for the ACLU. On appeal, Judge Kavanaugh and another judge reversed, agreeing with the Trump administration that it did not have to provide an immediate abortion and ordering the district court to give the minor time to find a sponsor so that the government did not have to facilitate the abortion — precisely the relief the administration sought.
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When the full D.C. Circuit later vacated that decision and ordered the government to facilitate the abortion immediately, Judge Kavanaugh dissented, stating that the majority had “badly erred” in adopting a “radical extension of the Supreme Court’s abortion jurisprudence.” He again endorsed the Trump administration’s position that it did not have to facilitate an immediate abortion on demand. In his opinion, Judge Kavanaugh emphasized the government’s “permissible interests” in “favoring fetal life” and “refraining from facilitating abortion.”
Judge Kavanaugh also ruled against the Obama HHS mandate that forced Hobby Lobby, Little Sisters of the Poor and other Christian-run businesses and organizations to fund abortion drugs in their employee health care plans.
During the Obama administration, he voted in Priests for Life v. HHS to invalidate the so-called accommodation to the contraceptive mandate, which required religious organizations to sign a form facilitating access to contraceptives for their employees. Judge Kavanaugh was one of few federal judges (Neil Gorsuch was another) to hold that the law imposed a “substantial burden” on the organizations’ exercise of religious liberty, and one of even fewer to conclude that the contraceptive-mandate accommodation violated the law. The Supreme Court later vindicated his position by vacating decisions that upheld the contraceptive-mandate accommodation.
Judge Kavanaugh ruled in favor of Priests for Life, concluding that the Obamacare contraceptive-mandate accommodation violated their religious liberty — another conservative legal ruling that for social conservatives should only build confidence in his judicial philosophy.
Judge Kavanaugh dissented from a court-of-appeals decision upholding Obamacare. He called the individual mandate “unprecedented on the federal level in American history” and said that upholding it would “usher in a significant expansion of congressional authority with no obvious principled limit.” He also explained that “no court to reach the merits has accepted the Government’s Taxing clause argument” and that the taxing clause “has not traditionally authorized a legal prohibition or mandate.”
And Judge Kavanaugh recently upheld pro-life free speech.
The Washington Metropolitan Area Transit Authority (i.e., the Metro) bans “issue-oriented advertising,” which it interprets to include religious ads. So when the Catholic Archdiocese of Washington wanted to run an ad with the words “Find the Perfect Gift” and an image of shepherds following a star in the sky during the Christmas season, Metro vetoed the ad. The archdiocese sued Metro for violating the First Amendment speech and religion clauses, as well as the Religious Freedom Restoration Act. The district court ruled for Metro, and the archdiocese appealed to the D.C. Circuit, where the oral argument pitted Paul Clement (representing the archdiocese), a solicitor general in the George W. Bush administration, against Donald Verrilli (representing the Metro), a solicitor general under Obama. Kavanaugh hammered Verrilli with what the Washington Post called “unrelenting” questioning about the Christmas-ad ban, which the judge described as “pure discrimination” and “odious to the Constitution.”
As Pitlyk concludes: “In short, Judge Kavanaugh’s record on issues of concern to social conservatives is rock solid, and it far exceeds that of any other contender. He is the right person for this pivotal time.”
Time will tell if President Trump selects Judge Kavanaugh, Judge Barrett or someone else to replace the Supreme Court justice who was the 5th vote for upholding Roe v. Wade and invalidating some pro-life laws — but both federal judge would appear to be welcome replacements.