Some have regret over an “exceedingly uninspiring” choice for the Supreme Court.
The selection of Brett Kavanaugh as a replacement for retired Justice Anthony Kennedy has been met by mild disappointment by some Republicans who were hoping for a more exciting (and base-invigorating) pick, someone they would be certain would vote to overturn Roe v. Wade.
As National Review’s David French wrote Monday night, “I’ll defend [Kavanaugh] vigorously from unfair critiques tomorrow, but tonight I join many conservatives in a slight sigh of regret. There was a better choice.”
French was referring to Amy Coney Barrett, who was viewed by many conservatives as a choice more likely to overturn Roe v. Wade. But Kavanaugh, meanwhile, gives some on the right pause because of what they view as insufficiently anti-abortion arguments made in two cases and an opinion in another case that helped shore up the Affordable Care Act. But most Republicans view Kavanaugh as a solid anti-abortion vote, pointing to his decisions on other cases and his lengthy tenure in conservative legal circles.
For social conservatives, overturning Roe is their biggest priority in the next decade. That’s why even their perception of a whiff of uncertainty has inspired criticism that Trump erred. They’re even saying Kavanaugh’s (very minimal) ambiguity on Roe is a reason to attempt to stop his nomination in its tracks.
Let’s be clear: Kavanaugh has support from a majority of mainstream pro-life and right-leaning organizations. The Heritage Institute, for example, welcomed Kavanaugh’s selection and said that he would be a “fair and independent jurist,” while National Right to Life tweeted their thanks to Trump for the nomination.
— Right to Life (@nrlc) July 10, 2018
But the rumblings of opposition are real.
The American Family Association, a socially conservative organization founded in 1977, immediately called on its members to rally against Kavanaugh. “AFA to Supporters: Tell Senate to Oppose SCOTUS Pick Brett Kavanaugh.” In the release, AFA President Tim Wildmon said:
“Judge Kavanaugh’s reasoning on religious liberty, Obamacare and issues concerning life have proven to be of major concern. For these and other reasons, we are calling on citizens to urge their senators to firmly oppose the nomination of Brett Kavanaugh as a Justice on the United States Supreme Court.”
Reportedly, another organization, March for Life, had concerns about Kavanaugh that its leadership shared with Vice President Mike Pence, arguing that the judge lacked the “backbone” to overturn Roe.
Other social conservatives were sounding the alert about Kavanaugh days before the pick was made. Joy Pullmann, managing editor of the Federalist, wrote a piece published July 6 titled “Trump Loses My Vote If He Nominates A Justice Weak On Religious Liberty,” but the URL was less circumspect, reading, “trump-would-lose-my-vote-if-he-nominates-brett-kavanaugh-over-amy-coney-barrett.”
Kavanaugh will need 51 votes to clear the Senate. The big worry has been whether Sens. Lisa Murkowski (R-AK) and Susan Collins (R-ME) would support him (or any pick) if they deem the pick too extreme on reproductive health. But now, there could be another issue for Republicans. If the social conservatives build a successful pressure campaign, senators on the right might be uncertain votes, too.
Kavanaugh’s case history
The issue with Kavanaugh among social conservatives centers on three cases in his judicial history at the Court of Appeals for the District of Columbia. In one case, Seven-Sky v. Holder, Kavanaugh’s dissent sparked the concern. As my colleague Dylan Matthews wrote:
Of particular note is his dissent in the case of Seven-Sky v. Holder, a constitutional challenge to the Affordable Care Act decided by the DC Circuit in 2011. By a 2-1 margin, the DC Circuit upheld the law as legitimate under the Commerce Clause (which empowers Congress to regulate interstate commerce), but Kavanaugh dissented, not because he thought the law was unconstitutional but because he thought the court lacked jurisdiction to consider the question, under 1867’s Anti-Injunction Act. That law bars people from challenging taxes until after they’ve paid them, and because Kavanaugh viewed the individual mandate as a tax, he thought it could not be challenged until the first mandate penalties were levied in the spring of 2015.
It’s that argument that has drawn considerable fire from Republicans, because Supreme Court Chief Justice John Roberts used it to affirm that the Affordable Care Act was constitutional back in 2012. He wrote in his majority opinion: “The Affordable Care Act’s requirement that certain individuals pay a financial penalty for not obtaining health insurance may reasonably be characterized as a tax,” a direct reference to Kavanaugh’s argument.
But in truth, the biggest stumbling block for Kavanaugh with social conservatives are the two latter cases, Priests for Life v. US Department of Health and Human Services and the case of an undocumented immigrant teen (known as Jane Doe in court filings) requesting an abortion while in federal custody — even though in both instances, the arguments being made against Kavanaugh by anti-abortion groups aren’t particularly strong on their face.
In Priests for Life, an anti-abortion organization (Priests for Life) filed a lawsuit against the government, and specifically the Department of Health and Human Services, over a “contraception mandate” that would require employers to offer health insurance plans that included coverage for contraception and sterilization.
As conservative writer Ben Shapiro wrote in his primer on the top four candidates for the Supreme Court, in his ruling on the case “Kavanaugh expressed that the government had a “compelling government interest” in provision of contraceptive coverage.” And the American Family Association agreed, saying that Kavanaugh “wrote a moderate opinion disagreeing with the priests on a foundational constitutional religious liberty principle.”
But as other conservative writers have pointed out, Kavanaugh ruled in favor of the priests in the case and against the government, writing in his opinion that to requiring them to file paperwork to follow the mandate would “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.”
Erin Hawley, a legal fellow at the conservative Independent Women’s Forum, agreed, telling me that Kavanaugh’s decision-making was on sound conservative ground. “Judge Kavanaugh wrote that requiring religious groups to facilitate employee access to contraceptives violated the Religious Freedom Restoration Act. The Supreme Court agreed in Zubik v. Burwell. He also reiterated in that case the critical points that the government may not second-guess the reasonableness of a person’s faith and that a substantial burden on religious exercise occurs whenever there is government action contrary to a firmly held religious belief (or a financial penalty).”
So the issue at hand for social conservatives appears to be this: He was advocating for the anti-abortion position in the case, but he wasn’t advocating for the anti-abortion position enough.
In the case of an immigrant teen who requested an abortion, the argument against Kavanaugh’s anti-abortion bonafides is even more vague: it’s largely based on the fact that, though he dissented against the majority of his Circuit Court colleagues in arguing that “The Government has permissible interests in favoring fetal life, protecting the best interests of a minor, and refraining from facilitating abortion,” he did not join another dissenting opinion, written by Circuit Court of Appeals Judge Karen Henderson, that argued there was no constitutional right to an abortion for an undocumented immigrant.
Henderson wrote, “Under today’s decision, pregnant alien minors the world around seeking elective abortions will be on notice that they should make the trip” to the US. Again, the problem for Kavanaugh wasn’t that he was supportive of abortion rights, but that by not joining Henderson’s dissent, he was insufficiently anti-abortion.
But the real issue for social conservatives isn’t Kavanaugh’s case history, which for virtually any other nominee under any other Republican president would pose no problems whatsoever. Rather, it’s a simple case of getting one’s hopes up, and getting disappointed.
Pining for Barrett
Among social conservatives, Judge Amy Coney Barrett had the bonafides and the personal story — as a Catholic and a respected jurist — that one conservative writer told me Monday night “really connects with Trump’s base.”
My rooting interest for SCOTUS pick: Amy Barrett
— Rich Lowry (@RichLowry) July 9, 2018
No wonder, then, that some of Kavanaugh’s biggest detractors on the right — among them Judicial Action Group and its founder Phillip Jauregui (who notably served as Roy Moore’s attorney) — were Barrett’s biggest supporters. On a call with supporters on Friday, Jauregui even said that Barrett had been chosen by God for the Supreme Court, describing Kavanaugh as a “usurper” like Absalom, the third son of the Old Testament’s King David who attempted to steal his father’s throne. “I believe that the Absalom is Brett Kavanaugh. He’s not the one that God has chosen. He’s not. And I believe that the one who is chosen is Amy Coney Barrett.”
By choosing Kavanaugh over Barrett, Trump rejected a prototypical “Trumpian” choice — one that would have inflamed the culture war over religious freedom and abortion rights (“triggering the libs”) and gotten the GOP excited for the November midterms — in favor of an “exceedingly uninspiring” selection that could have been made by Jeb Bush or Marco Rubio, or even by Kavanaugh’s previous employer in the Solicitor General’s Office, George W. Bush. And for Trump’s social conservative supporters who voted for him over Bush or Rubio, believing that he could do what they had not on abortion and the religious liberty issues that drive them most, getting a “swamp pick” instead is a tremendous let-down.
But ironically, their disdain could work in Kavanaugh’s favor. If AFA and groups further to the right are willing to campaign against him, that might make it more likely that Collins and Murkowski feel comfortable to vote to confirm him.