President Donald Trump’s candidate to replace Justice Anthony Kennedy on the Supreme court, Brett Kavanaugh, has received much criticism from both sides of the political spectrum; social conservatives claim that he simply isn’t conservative enough, and liberals claim that he is an outlier from mainstream conservatives.
Of course, it is not yet confirmed that Kavanaugh will replace Justice Kennedy; Kavanaugh’s confirmation hearing was on September 4th, where he testified in front of the Senate Judiciary Committee. Assuming Kavanaugh is voted to be put before the Senate by the Judiciary Committee, members of the Senate will then approve or deny the nomination on September 29th. However, it seems that Kavanaugh is already subject to a hearing by the American people as liberal media often over exaggerates the effect that his conservative politics have on his interpretation of the law.
The debate over his interpretation of U.S. vs. Nixon (a landmark case that was ruled upon in 1974) has made Kavanaugh subject to bipartisan criticism. The U.S. vs. Nixon set the precedent for limiting the president’s power to claim executive privilege; thus, no individual is above the law and even the sitting president may be subject to investigation and trial. Although Kavanaugh has expressed concerns about the effects of how U.S. vs. Nixon places heavy burdens on the executive branch, he is likely not somebody who will vote to overturn it. Kavanaugh is a legal conservative that believes in stare decisis, which is the principle of “standing by decided matters.” In other words, he doesn’t believe in overturning significant case law unless there is a significant reason to do so.
Kavanaugh has also come under fire for his comments on presidential investigations amidst the Trump-Russia investigation. According an article by the Washington Post titled, “Supreme Court Nominee Has Argued Presidents Should Not be Distracted by Investigations and Lawsuits,” Kavanaugh is largely opposed to investigations that are ultimately “time-consuming and distracting” and “ill serve the public interest” during times of crisis — a conclusion that he likely reached after the investigation of President Bill Clinton in 2009. However, Kavanaugh was merely giving his opinion as a citizen rather than answering how he would apply his understanding in an actual Supreme Court case. As a Supreme Court justice, Kavanaugh’s job is to rule off of empirical claims — evaluations of what the law is opposed to what the law should be. His commitment to stare decisis ultimately means that he will execute his duty as well because he will evaluate court cases on empirical claims rather than adjudicate based on how he personally views the world. A prime example of such an ideology emerged when Kavanaugh refused to invalidate the Affordable Care Act and upheld it. While he may not have agreed with the act, he ultimately did not believe that it is the court’s job to agree if a law is good or not, but rather, if the law is constitutional. Unlike judicial activists, Kavanaugh believes he is bound by Marbury vs. Madison, which set the precedent that the primary function of the Supreme Court is judicial review.
Kavanaugh’s interpretation abides by the doctrine of originalist jurisprudence, which means he believes in upholding the constitution as it is written — a method that provides stability to the rule of law. Unlike some of the left-leaning justices, he doesn’t see the role of a Supreme Court justice as being a policymaker; instead, he is someone who rejects judicial activism. Kavanaugh understands the power that the Constitution grants the Supreme Court and is not one who believes that courts should grow beyond their intended constitutional scope. As a means of preserving the delicate power balance, he leaves law writing to legislators and will function solely as an interpreter of the law if he is confirmed.
In more divisive cases, the left has sounded the alarm that Kavanaugh would potentially vote to overturn Roe vs. Wade. Such a vote, impossible as it is, would not mean the end of abortions in the United States. Instead, the decision would be sent back to the states — a large majority of which would likely allow access to abortion at some level. The debate surrounding Roe vs. Wade was never necessarily about abortion, but a question of whether or not the federal government had the jurisdictional authority to regulate the extent to which states can restrict abortion access. To say that the debate over Roe vs. Wade is merely a question of abortion is an oversimplification. The legal debate surrounding the case deals with the balance of federalism and whether or not states should be forced to provide a right that cannot be found in the text of the Constitution; a right that is being chipped away in the status quo. An article from The Economist titled “Brett Kavanaugh Could Shape the Law for the Next 40 Years,” states that states are already “impose restrictions designed to curtail [abortions].” To provide an example, South Carolina joined 17 other states in “banning abortion at the 20th week of pregnancy.”
Kavanaugh also faces criticism for his powerful defense of religious liberty; he is a prominent defender of the free exercise clause, a clause that says the government can’t stop one from practicing any religion that they choose. Much of the criticism that liberals espouse regarding the establishment clause is exaggerated. Kavanaugh’s favor of educational vouchers, for example, is completely constitutional and courts have agreed as such since the vouchers serve a secular interest in providing a flexible model of education.
Ultimately, one must come to the realization that Kavanaugh will uphold not only religious liberty but also abide by longstanding precedent and the delicate power balance that exists in today’s government. Kavanaugh’s appointment to the Supreme Court is to the benefit of the American people.