//  8/31/18  //  Commentary


A Justice of the Supreme Court must be faithful to the whole Constitution.  He or she cannot pick and choose which protections to enforce based on his or her own predilections.  But a review of Judge Kavanaugh’s record demonstrates that he has often done just that.

Judge Kavanaugh therefore will have a heavy burden to satisfy when he testifies before the Senate Judiciary Committee.  He will have to demonstrate that he is willing to enforce the whole Constitution—both the Founding document and the Amendments that made our Constitution more protective of freedom, equality, and democracy.

There is little doubt that, during the hearings that begin next week, Judge Kavanaugh will stress the critical role of precedent.  But, as his tenure on the D.C. Circuit reveals, Judge Kavanaugh has repeatedly stretched the rules of precedent to vastly expand protections for some rights, while permitting the government to run roughshod over others. 

In free speech and gun cases, Judge Kavanaugh has applied precedent to give corporations and the wealthy new sweeping free speech protections and gun owners broad protections against reasonable gun regulation.  By contrast, he has voted to expand the power of the government to conduct warrantless searches and seizures, even without individualized suspicion, and has offered an extremely cramped view of the right to choose abortion. 

These results may please conservatives, but they cannot be squared with the Constitution’s text, history, and values, or the decisions of the Supreme Court interpreting our nation’s charter. 

Indeed, even his fellow conservatives on the D.C. Circuit have chided him about his approach to precedent.  In one case, Judge Janice Rogers Brown—as conservative as they come—reminded Judge Kavanaugh that “our duty as an intermediate court is not to tell the Court what it ought to have said, but to abide by what it did say.”  Time and again, Kavanaugh has rewritten Supreme Court precedent to move the law sharply to the right.

Judge Kavanaugh’s campaign finance rulings are a case in point.  Even before Citizens United gutted campaign finance law, Judge Kavanaugh sought to move the law in that direction.  In a 2009 ruling, he wrote that “the anti-corruption rationale is not boundless” and held that the government could only redress quid pro quo corruption, ignoring the fact that binding Supreme Court precedent had explicitly rejected such a limitation.  In later rulings, Kavanaugh has opened the door to massive campaign spending on issue ads by foreign nationals and taken a very narrow view of Supreme Court precedent upholding campaign finance disclosure rules.     

His Second Amendment rulings are similar. In a 2011 case, Kavanaugh insisted that, under the Supreme Court’s ruling in D.C. v. Heller, only traditional and common gun laws pass constitutional muster.  In Kavanaugh’s tortured reading of Supreme Court precedent, newer approaches to reconciling the individual right protected by the Second Amendment with the interest in protecting community safety are, in Kavanaugh’s view, unconstitutional, irrespective of the burden they place on gun owners.  This per se ban on newer guns laws—which is hard to square with what Heller actually said and has been uniformly rejected by the lower courts—would establish a virtually unprecedented constitutional rule, giving the Second Amendment more protection than any other constitutional right.  Kavanaugh’s rule would strip federal, state, and local governments of their broad power to craft reasonable gun regulations.

In contrast, in Fourth Amendment cases, Judge Kavanaugh has repeatedly voted to scale back constitutional protections recognized by the Supreme Court, ignoring the critical role the Fourth Amendment plays in curbing governmental abuse of power.  Judge Kavanaugh has repeatedly voted to uphold governmental surveillance programs and drug testing programs, and to expand the authority of police officers to search suspects without probable cause.  Here, too, his conservative colleagues on the D.C. Circuit have admonished him that it is not the job of a lower court judge to invent new exceptions to the Fourth Amendment’s protections.  As Judge Thomas Griffith insisted, “we are in no position to create a new exception that would have far-reaching effects on how the police may properly investigate crime.” 

Kavanaugh’s record also reflects deep hostility to the Supreme Court’s many precedents protecting a woman’s right to choose abortion.  In a recent ruling, Judge Kavanaugh voted to give the Trump Administration the power to keep an unaccompanied 17-year old immigrant in custody to keep her from exercising her constitutional right to choose abortion.  He dissented from the court’s en banc ruling, which vindicated her right to choose abortion, calling the majority’s ruling a “radical” one that guaranteed “immediate abortion on demand.”  He would have allowed the government to prevent this young woman from obtaining an abortion—at least until a sponsor could be found—in order to “favor[] fetal life” and “refrain[] from facilitating abortion.”  His dissent turned a blind eye to a critical aspect of women’s liberty, dignity, and equality that the Supreme Court has long safeguarded, and would have effectively emptied of any real content the “undue burden” standard established by the Supreme Court.

Given this record, Judge Kavanaugh has a heavy burden to satisfy when he appears before the Senate Judiciary Committee: he must demonstrate his fidelity to the entire Constitution.

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