President Donald Trump has nominated U.S. Court of Appeals Judge Brett Kavanaugh to be his Supreme Court nominee to replace Justice Anthony Kennedy, setting the stage for a confirmation hearing that will likely focus on his views regarding both law and religion.
Trump made the announcement from the White House on July 9.
“What matters is not a judge’s personal views but whether they can set aside those views to do what the law and the Constitution require,” Trump said, as Kavanaugh stood nearby with his wife and children. “I am pleased to say I have found, without doubt, such a person.”
When Kavanaugh spoke soon after, he was quick to talk about his faith.
“I am part of the vibrant Catholic community in the D.C. area,” Kavanaugh said, after mentioning his Jesuit high school. “The members of that community disagree on many things, but we are united by a commitment to serve.”
Kavanaugh, who once clerked for Kennedy, has built a high-profile career: He helped author the Starr Report on then-President Bill Clinton’s affair with Monica Lewinsky, represented Cuban child Elian Gonzalez pro bono to keep him from returning to the island nation, and was a lawyer with the George W. Bush campaign during the Florida recount.
But since being appointed to the District Columbia Circuit of the Court of Appeals, Kavanaugh has also issued rulings that speak directly to hot-button issues among people of faith, such as abortion and religious liberty.
“He’s going to move the court to the right of the man who he clerked for,” said Micah Schwartzman, a University of Virginia School of Law professor who specializes in religion and the U.S. Constitution. He noted that the most lasting impact of Kavanaugh’s appointment may be how it reshuffles the calculus of the court, saying that confirming him will make it “more likely Chief Justice John Roberts will be the swing vote.”
Many have noted Kavanaugh’s dissent in Garza vs. Hargan, when the court allowed an undocumented teenager who had crossed the border from Mexico into Texas as an unaccompanied minor to get an abortion while residing at a government-funded shelter. He argued the 2017 ruling 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.”
Kavanaugh also wrote a lengthy dissent in another case when the court declined to take up a case brought by a group of priests who objected to the Obama administration’s rules regarding contraceptive coverage.
Some observers, however, felt that his dissent wasn’t, well, conservative enough. David French at the National Review argued last week that Kavanaugh erred by purportedly suggesting the government has a compelling interest to provide contraception to a religious organization that opposes it.
“While the government may well deem that contraceptives provide many general benefits (and Kavanaugh outlines those benefits in his opinion), that is not the same thing as holding that those general benefits are sufficiently compelling as applied to the employees of a small religious nonprofit,” French wrote.
But in another National Review piece, Justin Walker — assistant professor at the University of Louisville Brandeis Law School and former clerk of both Kennedy and Kavanaugh — argued the D.C. circuit judge is ultimately a “warrior for religious liberty.”
Responding to an article in the conservative publication The Federalist critical of Kavanaugh, Walker noted that Kavanaugh chaired the Federalist Society’s Religious Liberty practice group in the 1990s, offered pro bono work for “cases defending religious freedom,” and “represented a synagogue pro bono in a local zoning dispute.”
“Judge Kavanaugh believes his job is to apply the law objectively, without regard to his personal views,” Walker wrote in an email to Religion News Service. “Part of applying the law objectively includes applying the Constitution. He also understands that our founders believed deeply in religious liberty, and that the Constitution they wrote protects the free exercise of religion.”
Kavanaugh also reportedly volunteered his time on a Supreme Court religious liberty case with Kelly Shackelford, president and CEO of First Liberty Institute, and Jay Sekulow, one of Trump’s lawyers who has long opposed the portion of the IRS tax code that bars nonprofits from endorsing candidates for office.
A First Liberty Institute representative confirmed to Religion News Service that the 2000 case was Santa Fe Independent School District vs. Doe, where the court ruled that a policy allowing student-led, student-initiated prayer at high school football games violated the establishment clause of the First Amendment to the U.S. Constitution.
Kavanaugh is a regular lector at his church, the Shrine of the Most Blessed Sacrament in Washington, D.C., near his Maryland home. He also volunteers for the St. Maria’s Meals program at Catholic Charities, according to his biography on the court website, and has tutored at the Washington Jesuit Academy.
He has ruled on issues important to the Church including abortion rights. Kavanaugh has spent 12 years as a judge on the D.C. Circuit and has a long history of judicial decisions behind him. He dissented last year on a controversial decision that allowed an undocumented teenager who had crossed from Mexico into Texas as an unaccompanied minor to get an abortion while living in a government-funded shelter. The decision, he wrote, 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 opposed the Affordable Care Act’s birth control mandate. In 2015, he wrote a dissent opposing an accommodation to the birth control mandate. A panel had upheld the accommodation requiring religious organizations to sign a form facilitating contraceptive coverage for their employees. He wrote those 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 (submitting the form) or else pay significant monetary penalties.”
Some conservatives are worried he’s not conservative enough. His ruling on that abortion case involving the unaccompanied minor was less restrictive than other judges, giving some cause to worry that he is too pragmatic. Similarly, these voters favor his dissent opposing the birth control mandate, but worry it conceded that the government has an interest in providing coverage for contraceptives, but that “the government can achieve it in other ways,” according to SCOTUSblog.
His approval would preserve the current religious ratio on the court. He replaces his fellow Catholic, Kennedy, for whom he clerked. That means, if his nomination is approved, the religious makeup of the court would remain the same. That currently includes five Catholic justices, three Jewish justices and Trump’s previous pick, Neil Gorsuch, who was raised Catholic but now attends an Episcopal church.