By NADIA BANKS
Carpool dad. Youth basketball coach. Dedicated family man. An all-around “nice guy.” Supreme Court nominee Brett Kavanaugh has been adoringly characterized as the archetypal American dad by coworkers, Republican politicians, and peers alike.
In July, Julie O’Brien — the mother of a classmate of Kavanaugh’s two daughters — wrote an Op-Ed for the Washington Post entitled “I don’t know Kavanaugh the judge. But Kavanaugh the carpool dad is one great guy.” It detailed the triumph of the undefeated Blessed Sacrament School’s sixth-grade girls’ basketball team under Kavanaugh’s coaching and the sincerity with which Kavanaugh displayed their citywide championship trophy in his chambers.
There is no question that stellar personal character is an admirable characteristic in an individual; however, it is not an adequate testament to the ways in which his positions will impact Americans. Who really is Brett Kavanaugh? How will his appointment impact American lives? And what does his appointment by Trump — a sitting president under criminal investigation and an unindicted co-conspirator — mean for the future of our democracy?
Brett Kavanaugh obtained both his undergraduate and law degrees from Yale University and has served on the D.C. Circuit since 2006. His rulings have generally been accepted as pragmatic but staunchly conservative. A practicing Catholic, he has consistently sided with conservative thought on issues concerning birth control and abortion. These views in particular have sparked widespread concern regarding whether Kavanaugh’s appointment will lead to the overturning of the 1973 landmark case Roe vs. Wade, which decriminalized abortion in the United States.
Kavanaugh has repeatedly acknowledged Roe’s significance as an “important precedent,” but his actions suggest that even if he does not intend to overturn Roe, he will almost certainly engage in the type of narrow construction that will impair and ultimately erode its reach.
In 2017, Kavanaugh ruled to prohibit an undocumented teenager in federal custody from getting an abortion, but his decision was later overruled by the full court. He cited Supreme Court precedents in his decision, under which, “the government has permissible interests in preserving fetal life, protecting the best interests of a minor, and refraining from facilitating abortion,” Kavanaugh claimed.
Furthermore, in a 2003 memo recently made public, Kavanaugh contended that he was uncertain if “all legal scholars refer to Roe as the settled law of the land at the Supreme Court level since the Court can always overrule its precedent,” and asserted that some conservative justices “would do so.” Kavanaugh has refused to make any definitive statements on the hot-button issue throughout his Senate hearings this week.
Kavanaugh also aligns with conservatives on environmental policy issues. Though he is not a climate change denier — he acknowledes that “the task of dealing with global warming is urgent and important” — he does not believe it is the duty of the courts to make those policy decisions.
In a 2012 case in which a District of Columbia Circuit Court panel ruled to uphold a number of Obama-era greenhouse gas regulations, Kavanaugh argued that the E.P.A. had “exceeded its statutory authority” and “went well beyond what Congress authorized” in crafting a greenhouse gas permitting program. Kavanaugh’s notion of judicial authority indicates that in spite of his stated recognition of environmental issues, he will not be a champion for environmental protection.
One of the major ethical issues facing Kavanaugh’s appointment, at least for Senate Democrats, is rooted in a 2009 Minnesota Law Review article he wrote claiming that the criminal trial of a sitting president would “cripple the federal government.” It is difficult to ignore the fact that President Trump — in the midst of an investigation for which he has expressed extreme contempt — has chosen to appoint a judge who consistently questions the legitimacy of such investigations.
In response to the question of whether “the Congress or an independent counsel should investigate the president when his conduct is at issue,” Kavenaugh said, “It has to be the Congress.” While this is not a direct indication that Kavanaugh’s appointment will pose a threat to the investigation at hand, it raises legitimate concerns as to whether it is ethically sound to allow a president under investigation to appoint a judge who has expressed views so pertinent to his personal interests.
Despite Senate Democrats’ attempts to delay Brett Kavanaugh’s consideration given aforementioned ethical concerns, as well as the withholding of thousands of documents from Kavanaugh’s White House Record, his appointment to the Court is almost certain. At just 53 years old, Kavanaugh has the potential to launch an era of judicial conservatism poised to last for the next generation.