Senate Democrats and abortion activists are already launching a war on Supreme Court nominee Brett Kavanaugh.
Yesterday, President Donald Trump nominated federal appeals court Judge Brett Kavanaugh to the Supreme Court. Kavanaugh has taken the pro-life side in important cases and has very strong pro-life Bona fides — prompting leading pro-life groups to praise him for a sterling pro-life record.
President Trump applauded Judge Kavanaugh as someone who would apply the Constitution as written but Planned Parenthood launched a fierce attack the Supreme Court nominee, claiming he would “wreak havoc” on abortion.
Now, Senate Minority Leader Charles Schumer says he and fellow Democrats will do everything possible to derail the nomination, highlighting his pro-life record and opposition to Obamacare:
“I will oppose him with everything I’ve got,” Schumer (D-N.Y.) said. “This nominee will repeal Roe and women’s reproductive freedom, will repeal ACA — far against what the American people want. When they learn this, they’re going to oppose the nominee.”
Democrats and progressive groups are instead hoping to put pressure on two moderate Republicans, Sens. Susan Collins (Maine) and Lisa Murkowski (Alaska), seizing on their past support for abortion rights and their votes last year to reject a bill that would repeal key parts of the ACA.
Both senators issued noncommittal statements after Kavanaugh’s nomination on Monday, saying they looked forward to meeting him and reviewing his personal and judicial record.
Collins praised Kavanaugh’s “impressive credentials and extensive experience” but promised a “careful, thorough vetting,” while Murkowski pledged to conduct a “rigorous and exacting” review.
Schumer acknowledged Tuesday that Democrats will need to persuade at least two Republicans to oppose Kavanaugh. But he again focused on Kavanaugh’s potential opposition to abortion rights and the ACA: “If we can make that case, we will get a majority.”
But whether Senate Democrats will stay united in opposition to Kavanaugh also is in question. Ten incumbent Democrats are seeking reelection this year in states that Trump won in 2016, and three of them — Sens. Joe Donnelly (Ind.), Heidi Heitkamp (N.D.), and Joe Manchin III (W.Va.) — voted to confirm Neil M. Gorsuch, Trump’s first Supreme Court nominee.
Another Democrat representing a conservative state, Doug Jones (Ala.), was not in the Senate to vote on Gorsuch. He did not immediately issue a statement on Kavanaugh’s nomination.
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 only 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.
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.”