President Trump announced Monday his plans to nominate Brett Kavanaugh to replace retiring Justice Anthony Kennedy on the Supreme Court. American Democrats are worried about what his confirmation would mean for issues like abortion and same-sex marriage, since Kennedy was known as a swing vote.
FiveThirtyEight used a measure of judicial ideology to determine Kavanaugh’s place in the court, and predicted that he would be the second-most conservative justice on the Supreme Court, just slightly to the left of Justice Clarence Thomas.
So how would Kavanaugh vote on all the hot-button issues? Based on his past record as a judge on the U.S. Court of Appeals for the District of Columbia Circuit (and which groups support and oppose him), here’s the basics on where Kavanaugh stands on the things you care about.
Protestors outside Supreme Court already chanting, “Kavanaugh has got to go”. pic.twitter.com/9v2nfSo8Bx
— Heather Graf (@ABC7HeatherGraf) July 10, 2018
1. Reproductive rights and overturning Roe v. Wade
This is perhaps the most talked-about issue concerning the Supreme Court right now, since Trump promised during his campaign that he would nominate pro-life justices to SCOTUS so that eventually Roe v. Wade would be overturned, greatly restricting abortion rights for women.
According to CNN, Kavanaugh has never explicitly stated opposition to the Roe v. Wade ruling, and he’s been known to evade the issue. In fact, some conservatives believe he’s not harsh enough on abortion. Despite this, The Los Angeles Times pointed out that Kavanaugh was one of the names on the conservative Federalist Society’s shortlist of contenders sent to Trump, who were all chosen with the confidence that they were against Roe v. Wade.
And Kavanaugh has voted pro-life in the past—in an October 2017 case at the U.S. Court of Appeals, Kavanaugh dissented from the majority opinion that an undocumented immigrant teen had the right to seek an abortion, CNN reported. He wrote that “the government has permissible interests in favoring fetal life, protecting the best interests of a minor, and refraining from facilitating abortion,” and even though he acknowledged Roe v. Wade as precedent in his dissent, it’s clear that he poses a serious threat to the future of reproductive rights.
2. Environmental issues
Kennedy was again a swing vote on environmental issues, and comparing his views with Kavanaugh’s gives us a clear idea of how the court could change if Kavanaugh is approved, and the impact it would have on environmental law. According to The New York Times, Kennedy sided with the liberal minority in a 2007 case that allowed the EPA to regulate greenhouse gases under the Clean Air Act.
CNN and The New York Times noted that Kavanaugh has been critical of the EPA himself, claiming that they “went well beyond what Congress authorized” to regulate greenhouse gases in a 2012 case. He wrote, “The task of dealing with global warming is urgent and important … [but] as a court it is not our job to make policy choices.”
In fact, during his time on the Court of Appeals, Kavanaugh was even once overruled by the Supreme Court, with Kennedy serving as one of the votes to overrule his decision. The 2012 case EME Homer City Generation v. EPA dealt with a rule to regulate air pollution that went across state borders; the Court of Appeals voted against this rule, Kavanaugh writing a similar sentiment to his 2012 opinion: “It is not our job to set environmental policy. Our limited but important role is to independently ensure that the agency stays within the boundaries Congress has set. EPA did not do so here.” When the case went to the Supreme Court, it was overruled 6-2.
Kavanaugh’s replacement of Kennedy would swing the court to the right, and a lot of environmental regulation laws could be hurt in the process.
3. Executive power
This is an area that’s extremely worrying concerning the separation of powers in the federal government. In 2009, Kavanaugh wrote an article in which he urged Congress to “consider a law exempting a President—while in office—from criminal prosecution and investigation, including from questioning by criminal prosecutors or defense counsel.”
Allowing the president to be essentially consequence-free during their term, when they have perhaps the most power any American person could have, is a dangerous line of thinking. It’s one that has Democrats especially worried during a volatile presidency such as Trump’s. Senator Elizabeth Warren said that Kavanaugh “thinks presidents like Trump are above the law,” while Senator Ed Markey said, “It should come as no surprise that a president under federal investigation would nominate a judge who has written about the inadvisability of indicting a sitting U.S. president and the need to delay civil legal proceedings against one.”
Brett Kavanaugh’s record as a judge and lawyer is clear: hostile to health care for millions, opposed to the CFPB & corporate accountability, thinks Presidents like Trump are above the law – and conservatives are confident that he would overturn Roe v. Wade. I’ll be voting no.
— Elizabeth Warren (@SenWarren) July 10, 2018
Despite his stance on indicting a sitting president, however, Kavanaugh seems to be in favor of the impeachment process. According to Business Insider, Kavanaugh was outspoken in favor of Bill Clinton’s 1998 impeachment, and views impeachment as the best process for presidential misbehavior. However, there are varying opinions on whether impeachment is all that effective, especially in checking a president’s power: as law professor Suzanna Sherry told ABC News, “It’s only happened twice and so the general thought is that it means whatever the House and the Senate think it means.” And with a majority Republican House and Senate, and the general consensus that Trump will not be impeached while in office, as pointed out by ABC News, liberals are worried about Kavanaugh’s stance on executive power.
4. Same-sex marriage and LGBT issues
The Los Angeles Times drew attention to the issue of the right to privacy: the American right to privacy was the rationale that upheld both Roe v. Wade and marriage equality, and means that Americans can make personal decisions, like whether to have an abortion or to get married to someone else, free from government interference.
But as we know, Roe v. Wade is now in possible trouble with Kavanaugh’s nomination. If the court changes their mind on the right to privacy in order to overturn Roe v. Wade, it could mean changing their mind on how the right to privacy applies to marriage equality as well.
Beyond that, Kavanaugh’s views on LGBT issues are “hazy,” according to Bustle, but he has had past support from the Family Research Council, a Southern Poverty Law Center-designated hate group that is staunchly anti-LGBT. While Family Research Council’s support doesn’t necessarily mean that Kavanaugh shares their exact ideology, a recent poll by the Public Religion Research Institute found that a majority of Republicans oppose same-sex marriage, so Kavanaugh won’t exactly be waving the rainbow flag, and his nomination is still alarming to LGBT activists.
5. Healthcare
The Washington Post argued that healthcare would take center stage at Kavanaugh’s confirmation hearing. Healthcare remains a contentious topic in the federal government, and since failed to repeal the Affordable Care Act, aka Obamacare, the Supreme Court could play a bigger role in the future of American healthcare.
Kavanaugh’s most notable decision regarding healthcare occurred in a 2011 case, Seven-Sky v. Holder, for which the court majority upheld the ACA’s constitutionality. Kavanaugh dissented from the majority—but interestingly, Republicans felt he didn’t go far enough in declaring Obamacare unconstitutional, because in his opinion, he wrote, “This legislation was enacted, moreover, after a high-profile and vigorous national debate. Courts must afford great respect to that legislative effort and should be wary of upending it.”
HealthLeaders Media also reported Kavanaugh’s record on contraception: in a 2015 case, he argued that the ACA’s mandatory contraception requirements were a threat to religious freedom, again implying that if confirmed, cases surrounding reproductive rights could face a tougher court.
Thus, Kavanaugh will likely field tough questions from both sides at his confirmation hearing when it comes to healthcare, albeit for different reasons.
6. Gun control
According to Teen Vogue, gun control activists are horrified by Kavanaugh’s nomination. Moms Demand Action tweeted on Monday that “President Trump’s nomination of Judge Kavanaugh to the Supreme Court is a Christmas in July gift to the NRA,” and Senator Chris Murphy wrote that he was a “true Second Amendment radical.”
Brett Kavanaugh is a true Second Amendment radical. He believes assault weapon bans are unconstitutional, a position way out of the judicial mainstream, far to the right of even late Justice Scalia.
— Chris Murphy (@ChrisMurphyCT) July 10, 2018
This is because of Kavanaugh’s track record with cases concerning the Second Amendment. CNN writes that in 2011, Kavanaugh dissented from a majority opinion about a ban on semi-automatic rifles. He wrote that because SCOTUS found semi-automatic handguns to be constitutionally protected, “It follows … that semi-automatic rifles are also constitutionally protected and that DC’s ban on them is unconstitutional.” He went on to say that “Gun bans and gun regulations that are not long-standing or sufficiently rooted in text, history, and tradition are not consistent with the Second Amendment individual right,” consistent with his originalist approach to Constitutional law.
The NRA tweeted their public support of Kavanaugh’s nomination on Monday night, and wrote that they will be “activating our members and tens of millions of supporters throughout the country in support of Judge Kavanaugh.” With the recent national attention on public shootings, especially school shootings, since Parkland in February, Kavanaugh’s confirmation would be a step backwards for gun control activists.
Next in the process for Kavanaugh’s nomination will be “courtesy visits” to the Senate ahead of the confirmation hearing. Because it is precedent for nominees to refrain from making public statements until after the hearing, we won’t hear Kavanaugh’s opinion again until he is before the Senate Judiciary Committee. Al Jazeera reports that the Republican Senate leadership wants to complete the confirmation process before the midterm elections in November.